### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE August 12, 2003 Session
STATE O F TENN ESSEE v. DOUGL AS MAR SHALL M ATHIS
Appeal from the Circuit Court for Houston County No. CR-4532 Robert E. Burch, Judge

No. M2002-02291-CCA-R3-CD - F iled January 30, 2004

The defendant, Douglas Marshall Mathis, was convicte d of first degree murder and sente

nced to life imprisonme

nt. In this appeal, he contends: (1) tha t the evidence is insufficient; (2) that the trial court erred by g iv in g a n i rr el ev an t d ef in it io n o f " kn ow in g" as a p ar t o f t he in st ru ct io ns to th e j ur y; (3) that the prosecu

tor's c omments during closing argument we re improper; (4) that he

was denied the right to a fair and impartial jury; and (5) that the trial court erred by a dmitting c ertain e

vidence . Beca

use the state 's clos ing a rgumen t was i mproper and the error cannot be cla ssified as harmless, the judgmen t of the tr ial cour t is rever sed and th

e cause is remand

ed for a new tria l. Tenn. R. App. P. 3; Judgment of the Trial Court Reversed

G ARY R

. W ADE , P.J., delivered the opinion of the court, in which D AVID G. H AYES , J., joined. J ERRY L. S MITH , J., filed a concurring and dissenting opinion.

Jerred Creasy and K

irk Vandivort, Char lotte, Tenne ssee, fo r the app ellant, D ouglas M arshall M athis.

Paul G. Summers, Attorney Gene ral & Repor

ter; Chris tine M. Lapps, Ass istant Atto rney Genera l; Dan M. Alsobro oks, District Attorney Gene ral; and Carey

J. Thompson, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

In May of 2001, the de

fendant, charged with first deg ree murder, entered a plea of guilt to
one count of s econd de gree m urder f or the sho otin g death of the victim, Selwyn Ward. L ater, he filed a petition for post-conviction relief and in September 2001 the post-conviction court g ranted a new tri al. During the t rial, Kenneth Barnes, Sheriff of Houston County , testified that shortly before midnight on May 11, 1999, he received a report of a shooting at a c ampsite near t he Mag nolia Bridge. Upon hi s arrival, Sheriff Barnes found the body of the victim, Selwyn Ward, who had suffered a shotgun wound to the face. The victim's wife, Kim Ward, informed the Sheriff that the-2-

defendant had shot the victim

after a n argument. Ward

admitted t

hat she a nd her son , Cody

Luca s, had mo ved th e vict im's b ody after t he sho otin g.
While at the crime scene, Sheriff Bar nes learned

that the defendant, whom he had known for thirt y years, had rep orted to th e sheri ff's department and wanted to make a statement. Because he
was ill with the flu, the Sh eriff w as unable

to partic ipate in

the entire interview but did recall that the defenda nt, who did not appear to be intoxicated, had clai med that the victim had brandished a weapon during t

heir ar gument. During

the quest ionin g, the de fendant acknowledged that he ha d thrown the murder weapon into the river.

Darrell Allison of the Houston County Sheriff's D epartment, the first officer to arrive on the scene, found that the victim was dead. At trial, he testified that he did not find any wea

pons at the
scene. Later, Office

r Allison learned tha

t the defenda

nt had adm

itted the s hooting a

nd told investigators that he had thrown the gun, which was never found, into astream. A

lthough D eputy Alliso n did not con duct an interview, he recalled that the defe ndant remarked, "Darre

ll, you . . . know I didn't mean to hurt this man."

David Hicks, criminal in

vestiga tor for th e Houston

County District A

tt orney 's Office, participated in the investigation. When he arrived at the cr ime scene, Hicks observed the shotgun wound to the victim and, along with Agent JoeCraig of the Tennessee Bur eau of Investig ation (TBI), interviewed

the victim's wife and stepson. Hicks noted that there was a large pool of blood in front of a loun ge chair near th e campfire and that t he vic tim's body had bee n moved. He testified that no weapons were found at the scene.

Hic ks and Agent Craig also interviewe d the defendant, who had turned himself in to t h e Houston Coun ty Sherif f's Department. According to Hicks, the def endant had

been drinking but was not d runk. He

recalled that the

defenda nt claime d that he h ad gotte n into an a

rgumen t with th e victim, who ha d then "gone to his t ent an d came b ack wi th a gu n or what appe ared to be a gun." Hicks maintained that it was the defendant's contention that he had backed up as far as he c ould and
was in danger when he shot the victim. After questioning the defendant' s brother, Hicks informed the defendant that he had received a conflicting account of the shooting and the de f endant the n admitted that the victim may not have had a weapon. According to the office r, the defend ant acknowledged

takin g a twel ve-gauge shotgun from unde

r the sea t, loading it with one

six shot shell , positioning

the barr el acro ss the wind

ow, and f iring one shot.

The victim'swife, Ki m Ward, tes tified tha t her fa mily had gone campin g near

Magnoli a Bridge on the day of the murde r. She recalled that shortly after 10:30 p.m., the driver of a large blue
car paused on the bridge and then drove towar d their ca mps ite. When th e car st opped ne ar their campsite, two men got out and one announced, "I t's Marshal l Mathis and my brother Jeff." According to Ms. Ward, the victim then said, "[Y]our brother, Jeff, he's the one thatsold my sixteenye ar-old . . . son na

rcotics, " to which the defendant replied, "[Y]ou're making a mistake." Shortly thereafter, Ms. Ward he ard "a loud boom" and then s aw the victim roll off of

his chair and onto the ground. It was he

r opinion that the victim died within a few seconds. Ms. Ward testified that she-3-

sent her son, Cody

Lucas, for help while the de fendant and his brother sped away . She contended that t he vic tim w as una rmed at the ti me of t he sho otin g. During cross-examination, Ms. Ward admitted that she did not see who f ired the shot that killed the victim. While she was unab le to identi fy the def endant as the driver of the car, she maintained that she saw his arm ex tending outside of the driver's side window. She conc eded, however, that she did not see a gun. Ms. Ward acknowledged that the d istance from where the defend ant's car stopped to where the victim was sitting was approximately forty -three feet. She also remembered

that the defendant had stated that he was drunk. Ms. Ward explai ned t hat after the shoot ing, she and her son, Cody, ha d moved the body bec ause the victim'sfeet we re too cl ose to the fire. Cody

Luca s, the vic tim's ste

pson, test if ied that he had been expelle d from sc hool short ly before the shooting because he ha d taken Valium to school. He claimed that he acquire d the pills from the defendant's brother, Jeff Mathis, and that the victim was upset about the incident. He recalled that on the day

of the shooting, the family had awa kened early , gathered their camping g ear, and driven to White Oak Creek for a day of fishing and swimming. Luc as testified that when he returned to his tent at approximately 10:45 p.m., the victim and his mother were sitting by

the fire. He stated that he had

only slept for about fiftee n minutes when he heard a gunshot. He remembered that when he stepped out of his tent, he saw "a ca r taking off at the top of

the driveway

and my dad laying there and my mom cr

ying." Lucas reca

lled that he drove the family van to a nearby

residence to telephone 911.

Kim berl y Agee, a friend of the victim, testified that she a nd her children had joined the victim an d h is ch il dr en at th e c am ps it e o n t he da y o f th e murder. She recalled that the children played and swa

m in the creek while the defendant caug ht fish for the evening meal. Ac cording to Ms. Agee, the victim was "laid back in his recliner or lounge chair by the camp fire, just relax ing" when she left t

he camps ite at app

roximately

10:45 p.m. S he test

ified t hat she saw no gun in the victim's possession.

Jeff Mathi s, th e defen dant's brother , testifie d that he a nd the def

endant ha d travel ed to Waverly on the evening of the shooting and, as they returned home, had to cross Magnolia Bridge

. He recalled that whe

n they reached the brid

ge, the defenda nt first di rected him to stop th

e vehicl e and then asked him to drive down to the creek. He stated that when they arr ived at the campsite, the defendant identified himself to the victim, explaining that his brother was with him, at which point the victim re

plied, " [Y]our little

brother , Jeff, ha s sold my sixteen -year-old son some coc aine." Jeff Mathis testified that an argument ensued and the defenda nt, who wa s sitting in the passe nger se at, pushed him out of the way and shot the victim with a sawed-off, twelv e-gauge shotgun. According to Jeff Mathis, the defe

ndan t rem arke d, "[I

]f I ha d another gun or c ould ge

t this shell

out, . . . I 'd kill her and him, too." Jeff Mathis testified that he drove the defendant to the residence they shared with their pare nts and the

defe ndan t shou ted, "Da ddy , ge t up, . . . I 've

kille d a ma

n[!]"-4-

During cross-e

xamin ati on, Je ff Mathis conceded that he had initially claimed that the defendant was unarmed on the day of the shooting, explaining that he had done so because he was on parole at the time. He also acknowledged that the victim sounded angry when he a

ccused h im of selling drugs to his son and that he was scared because "[y ]ou can't ever tel l w hat a man's got when he's c amped out ." Jeff Ma this testif ied that th e defendant did not take aim before shooting the victim and simply fired out the window of the c ar.
Before the Sheriff arrived to question the defendant, J.T. Baggett, a me mber of the Dr ug Task Forcein Houston County, stood guard. Off icer Bagge

tt testified that the defendant was on the front step s of the police station when he arrived and appea red to be nervous. While the officer did not particip ate in the interview of the defendant, he recalled that the defendant claimed that he did not intend to shoot the victim and that he had done so in self-defense. He also hea rd the defendant ackno wledge that he would have to "face the consequ ences of

going to jail for h

is actions ." Bag gett testified that the defendant did not appear to be intoxicated.

TBI Agent Joe Craig testified that the defendant initially claimed se lf-defense, maintaining that the victi m had walked o ut of his tent with something in his hand that resembled a gun. The agent recalled that when the defendant wa s confronted with the contradictory

statemen t given b y hi s brother, he stated that the victim had been sitting in the chair when they arrived and appeared

to have
so me thing in his hands. According to Agent Craig , officers from the Tennessee Hig hway Patrol lowered a camera into the river at the location where the defenda nt claimed to have disposed of the gun but were

unable to locate the weapon. He explained that the current w as too stro ng to pe rmit divers to go into the area to search. During cross-e

xamination, Agent Craig acknowledged that during his investigation, he failed to discover an y p revious conflicts between the defendant and the victim. He recalled that the defendant had insisted that the only reason he traveled to the

camp site

at Magn olia Bri dge wa s to "sleep off" the

alcoho l he had drunk earlier in the evening, imply ing a chance meeting with the victim. A gen

t Cra ig a lso ag reed that t here were no hol es in t

he lo unge chai r whe re Ms . Wa

r d claimedthat t he vic tim h ad been sitt ing at t he tim e of th e shoo ting. He acknowledged that he wa s unable to conclusi vely

determin e whethe r the vic tim was sta

nding or seated w hen he wa s shot.

Dr. Cha rles Harlan, who performed the autopsy , testified that the cause of death w as a shotgun wound. He found pellet wounds from the victim's shoulders to his head and determined that
some of the pellets from the shotgun blast had altogether missed the victim, suggesting the lack of
a precise aim. Dr. Harlan was unable to find wadding in any of the wounds, indica ting that the shot was not fired from an especially close range.

I Ini ti al ly, the defendant challenges the sufficiency of the evidence for a first degr ee murder conviction, arguing that the state failed to establish the ele ment of prem editation. On appeal, of course, the state

is entitl ed to the s tronge st legitimate view of the evidence a

nd all re asonable inferences which might

be drawn therefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).-5-

The cre dibil ity of the witnesses, the we ight to be given their testimony , and the reconciliation of conflic ts in the proof are matters entrusted to the jury as the trier

of fact. By

rge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime be yond a reas onable do

ubt. Tenn. R. App. P. 13(e); State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibi lity

of the witnesses, the weight and value of the evide nce, as well as all factual issues raised by the evidenc e are resolved by the trier of fact. Liakas v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a ver dict of g uilt remov es the pr

esumption

of innoce

nce and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally

insufficient to sustain a guilty ve rd ict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

First de gree m

urder is describ ed as: (1) A premeditated and intentional killing of another; (2) A killing of another committed in the perpetration of or attemp t to perpetr ate an y fi rs t d eg re e m ur de r, ar so n, ra pe , r ob be ry, burgla ry, theft , kid nappi ng, aggravated child abuse , aggravated child neg lect or aircraft piracy ; or (3) A ki lli ng of an other commi tted a s a resu lt of t he unl awful throw ing, placing or discharging

of a destructive device or bomb.

Tenn. Code Ann. § 39-13-202(a) (Supp. 1999). Tennessee Code Annotated section 39-13-202(d) providesthat:
[P]remedi tation i s an act d one afte r the exer

cise of r eflecti on and judgment. "Premeditation" means that the intent to kill must have been formed prior to theact itself. It is not

necessary

that the purpose to kill pre-exist in the mind of the accused for any definite pe

riod of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and pa ssion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d) (1997). Whether the evidence w as sufficient depends entirely on whether the state was able to establish bey ond a reasonable doubt the element of premeditation. See State v. Sim s , 45 S.W.3d 1, 7 (Tenn. 2001); State v. H all , 8 S.W.3d 593, 599 (Tenn. 1999).

Our supreme court has held that the presence of pr emeditation is a question for the jury and may be inferred from the manner and c ircumstances of the killing. See State v. Suttles , 30 S.W.3d 252, 261 (Ten

n. 2000); State v. Pike , 978 S.W.2d 904, 914 (Tenn. 199 8). Moreove r, it is wellestablished that premeditation may be pr oved by circ

umstantial evidence. See, e .g. , State v. Brown , 836 S.W.2d 530, 541 (Tenn. 1992). Our high court has identified a number of circumstances from which the jury

may infer pr emeditat ion: (1) th e use of a deadly weapon upon an unarmed victim; (2)-6-

the particular cru elty

of the killing; (3) the defendant's threats or declarations of intent to kill; (4) the defend ant's procurement of a weapon; (5) any

prepar ations to conceal the crime undertaken bef ore the crime is committed; (6) destruction or secretion of evidence of the ki llin g; and ( 7) a def endan t's calmnes s immediately after the killing. See State v. Bland , 958 S.W.2d 651, 6 60 (Tenn . 1997); Pike , 978 S.W.2d at 914-15. This list, howe ver, is not exhaustive and serves only to demonstrate that premeditation may

be established by a

ny evidence

from which the jury ma

y infer that the killing was done "after the exer cise of reflect ion and jud gment." Tenn. Cod e Ann. § 39 -13-202( d); see Pike , 978 S.W.2d at 91 4-15; Bland , 958 S.W.2d at 660

. One learne d treatis e states that premeditation may be inf erred from events that occur befor e and at the ti me of t he kil ling:

Three categories of evidence a re important for [the] purpose [of inferring prem edita tion]: (1) facts about how and what the defenda nt did p rior to the actual killing w hich show he w as eng aged in activity directe d toward

the killing , that is, planning activity ; (2) facts about the defendant's prior relationship and conduct with the victim fromwhich motive may be infer red; and(3) facts about the nature of the killing from whic

h it may be infer

red that the manner of killing was so particular a nd exact ing that the defendant must have intentionally killed according to a preconceived design. 2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed. 2003) (emphasis in original).
Here, the proof at

trial established that once at the campsite, the defendant had an unpleasant exch ange of words with the victim. There was no proof of planning activity or any particular motive. While there was no indication that the defendant procure d the shotgun for thepurpose of confronting the victim, he did admit in his statement to police that he took time to reach for the gun, load it, and aim in the direction of the victim. Although he claimed to police that he did so only to scare the victim or to defend himself, the jury was freeto infer otherwise . Furthe r, Jeff Ma this testified that after shooting the victim in the face, the defendant remarked that he would kill Ms. Ward if he had
an additiona

l shell, po ssibly

imply ing an in tent to ha ve caused harm to th

e victi m. Finally, the defendant hurriedly left the sc ene before the incident was reported to the Sheriff and disposed of the murder weapon b y th

rowing it into a river. Taken in the light most favorable to the state, there was by a thin margin sufficient evidence to support a finding of preme ditation.

II The defendant next asserts that the trial court erred by providing an irrelevant

definition of "knowi ng" in its instructions to the jury . The stat

e asser ts that the

issue is moot becaus e th e defendant was convicted of first deg ree murder.

The trial cou

rt has a d uty "to give a co mplet e charge of the law applicable to the facts of a case." State v. Harbison , 704 S.W.2d 314, 319 ( Tenn. 198 6); see also Tenn. R. Crim. P. 30. "[The] defendant has a constitutional right

to a correct and complete char ge of the law." State v. Teel , 7931 "[A] person act s knowin gly w ith respect to th e conduct or to circumstances sur rounding the conduct when the person is aware of the nat ure of the conduct or that the circumstances exi st." Tenn. Code Ann. § 39 -11-302(b).
-7- S.W.2d 236, 249 (Ten n. 1990) . Our law requires that all of the elements of eac h offense be described and defined in connection with thatoffense. See State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989). Jury

instructi ons must, ho wever, be revie wed in the

context of

the over all char ge rather than in isolation. See Sandstrom v. Montana , 442 U.S. 5 10 (1979) ; see also State v. Phipps , 88 3 S.W.2d 1 38, 142 (T enn. Crim. App. 1994 ). A cha rge is p rejudic ial erro

r "if it f ails to fa irly sub mit the leg al iss ues or if it misleads t he jury as to the appl icable law." State v. Hodges , 944 S.W.2d 346, 352 (Tenn. 1997). Any omission in t

he instru ctions in r

efere nce to an element of the offense which mig ht lessen the burden of proof placed upon the state is constitutional error a nd require s a new trial unless the error is harmless bey ond a reasonable doubt. State v. Walker , 29 S.W.3d 885, 893-94 (Tenn. Crim. App. 1999).

In Stat e v. Pa ge , 81 S.W.3d 781 (Tenn. C r im. App. 2002), a panel of this court held that because second degree murder is a result-of-conduct offense , the trial court erred by including the nature-of-conduct

and nature-of-circumstances 1 definitions of knowingly in its char g e to the ju ry. Further, the panel determined that the error could not be classified as harmlessbey ond a rea sonable doubt because the defendant's mental state was a contested issue at trial. Id. at 789-90.

As indicated, the defend ant was convicted of first degree premeditated murder, which requires a determination by the jur y that he acted i ntentio nally. I n State v. H

ill , 118 S.W.3d 380 (Tenn. Crim. App. 2002), the defendant, who was convicted of first degree murder, complaine d that the trial court er

roneousl y pr ovided the

nature- of-cond

uct defi nition of in

tentiona lly . A panel

of this
c ourt concluded that the trial court should not have provided the nature-of -conduct de finition o f intentional because first degree pr emeditated murd er, like second degree murder, is a result-ofconduct offense. Thepanel ruled, however, that because the de fendant had bee n convict ed of fir st degree murder, which requires a finding that the defe ndant ac ted with

premeditation, the

error c ould be classified as harmless beyond a reasonable doubt. Id. at 386. By its verdict, the jury in this instance concluded that the defendant acted with preme ditation. That is to say that he display

ed a previously f

ormed design or intent to kill. See State v. West , 844 S.W.2d 144, 147 ( Tenn. 199 2); Hill , 118 S.W.3d at 386. I mplicit in a

finding of preme ditation is that it was the defendant's desire to cause the result of his conduct, i.e., the death of the vic tim

. Because the jury

determined that the defendant acted with the design to kill, it is our view that the inclusion of the nature-of-conduct definition of intentional would be h armless b ey ond a rea sonable doubt. See Hill , 118 S.W.3d at 386. Additionally, it is our view that a finding of preme di tati on encompasses a f

in di ng th at th e d ef

en da nt ac te d k no wi ng ly. In consequence , any err or with regard to the definition of knowing would qualify as harmless beyond a

reasonable doubt. See id. ; see also Page , 81 S.W.3d at 789.-8- III Next, the peti tioner claims that the prosecutor's closing ar gument was improper. Specific ally , he argues that the state improperly vouched for the victim's wife, Ms. Ward, and law enf orcement witnesse s, interjected personal opinion in violation of commonly known guidelines, and made inapprop riate comments specifically de signed to a ppeal to passion and caprice rather than log ic, reason, or performance of civic duty . The state submits that the defendant has waived this issue by failing to make a contemporaneous objection or raise the er ror in a motion for new trial. In the alternative, the state

asserts that the argument was not improper and that, even if some of the comments m

ight be d eemed in appropr

iate, the y ha d no effect on the outcome of the trial

. Ini ti al ly, the st ate cor rectl y points out t hat th e defen dant d id no t obj ect du ring th e pros ecuto r's closing argument

an d did not ra

ise the iss ue of impr

oper ar gument in a motion f

or new tr ial. Appellat e relief is generally

not available when a party has "failed to take whatever action was
reasona bly available to prevent or nullify the harmful effect of any error." Tenn. R. App. P. 36(a);
se e State v. K

il lebrew , 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver applies when the defendant fails to make a contem

poraneo us object ion); see also State v. Jenkins , 733 S.W.2d 528, 532 (Tenn. Cr

im. App. 19 87); State v. Rhoden , 739 S.W.2d 6, 11-12, 18 (Tenn. Cr im. App. 1987). Whether properly a ssigned or not, however, this court may consider plain error upon the record under Rule 52( b) of the Te nnessee Rules of Criminal Procedure. State v. O gle , 666 S.W.2d 58 (Tenn. 1984).

Before an error ma

y be so recog nized, it mus t be “pla

in” and mu st

affec t a “subst

antial ri ght” of the accused. The word “plain” is sy nonymous with “clear

” or equivalently “ obvious.” United States v. Olano , 507 U.S. 725, 732 (1993). Plain error is not merely er ror that is conspicuous, but especia lly egregious error

that stri kes at the fairness, integrity , or public reputation of judicial procee dings. S ee State v. Wooden , 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v. Adkisson , 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined “substantial right” as
a right of “fundamental proportions in the indictment process, a right to the proof of every element of the offense and . . . constitutional in nature.” I n that case, this court

established five factors to be applied in determining whether an error is plain: (a) The record must clea

rly establish what occ urred in the trial court; (b) a cl ear and

unequivo cal rule

of law mus t have be en brea ched; (c) a su bstantial right of the accused must h ave bee n advers ely

affec ted; (d) the accused [must not have waived] the issue for tactical rea sons; and (e) consideration of the error must be " necessary to do substantial justice."

Id. at 641-42. Our supreme court characterized the Adkisson t est as a “clear and meaning ful standard” and emphasized that each of the five factors must be present before an error qua lifies as plain error. State v. Smith , 24 S.W.3d 274, 282-83 (Tenn. 2000).

Ini ti al ly, the record contains the entire transcript of the trial , including

the closing arg

uments. While defense counsel did not present as a gr ound for relief in the motion for new tri al any-9-

prosecutorial misconduct in closing argument, the issue was raised on appeal and the defenda nt has askedthis court to consider the issue under theplain er ror doct rine. B oth the sta

te and the defense have addressed the merits of the issue in their respective briefs. Secondly , this court is guided by well-establishedand un equiv ocal ru les gov ernin g the conte nt of clos ing arg

ument. A breach o f these rules may warrant a new trial. See, e .g. , State v. Cribbs , 967 S.W.2d 7 73, 786 (T enn. 1998 ); State
v. Ke en , 926 S.W.2d 7 27, 736 (T enn. 1994 ); State v. Stephenson , 878 S.W.2d 530, 541 (Tenn

. 1994); State v. Thornton , 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999); Lackey v. State , 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978). Third, improper or inflammatory comments during closing argument in fr in ge up on a d ef

en da nt 's ri gh t t o a fa ir an d i mp ar ti al ju ry, a jury guided by

reason and logicrather than passionor caprice. Fourthly , the record gives no indication that the failure to object qualified as a st rategy of

defense . Finally , it is our vi ew that a naly sis of this i ssue unde

r the pla in
error d octrine is necessary

in this case to do substantial justice because the proof of an e ssentia l element of the cr ime is par

ticularl y c lose. As indic ated, the evidenc e of pre

meditatio n, while margin ally

sufficient, was not overwhelming. In c onsequence, the prejudicial effect of an improper closing argume

nt would be

great er th an in a c ase where there is more than sufficie nt proof of the defend ant's guilt. See, e .g. , Judge v. State , 539 S.W.2d 340, 3 45 (Tenn . Crim. App . 1976) (" While the evidence here prepondera tes in the State's favor on appeal, this case wa s a very 'close' one at trial when viewed by the r

easonable doubt standard. Therefore, the prejudicial impact of

the statement
on the jury

is likely to have be

en gre ater tha

n it would ha

ve been had evide

nce of de fendant 's gui lt been overwhelming.").

Trial courts have substantial discretiona ry auth ority in determining the propriety of f

inal argume nt. Although counsel is gene rally given w ide latitu de, cour ts must res trict any

imp rope r argume nt. Sparks v. State , 563 S.W.2d 5 64 (Tenn . Crim. App . 1978). G enerally speaking, closing argument "must be temperate, must be predicated on evidence introduced during the trial of the case, and must be pert inent to t he issues b eing tried." State v. Sutton , 562 S.W.2d 820, 823 (Tenn. 1978). For example, our supreme court has ruled t hat argume

nt that "t hat defe nse coun sel was ' trying to throw sand in the eyes of

the jury' and 'blowing smoke in the face of the jury '" is imp

roper a rgumen t. Statev. West , 767 S.W.2d 387, 395 (Tenn. 1989). To merit a new tria l, however , the arg

ument must be so inflammatory or improper as to affect the verdict. Harrington v. Sta te , 215 Tenn. 338, 385 S.W.2d 758 (1965). In Judge v. State , this court articulated the factors to be considered in making that determination:
(1) the condu ct compla

ined of viewed in the context and the light of the facts and circumstances of the case; (2) the curative measures undertake n by the court and the

prosecution; (3) the in tent of the

prosecu tor in making the im

proper s tatement s; (4) the cumulative effect of the improper conduct and any other errors in the record; and (5) the relative strength or wea kness of the case.
539 S.W.2d at 344.-10-

Most restrictions during final arg um ent are placed upon the state. That is based in g reat
measure upon the r

ole of the prosecu tor in the c

riminal ju stice sy stem: [The prosecutor] is the repre sentative not of an o

rdinary party to a c on tr ov er sy, but of a soverei gnty

whose obl

igation to gove rn impart ially is as comp elling a s its obligation to govern at all; and whose interest, therefor e, in a criminal prosecution is not that it sha

ll win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two fo ld aim of w hich is that guilt shall not escape or innocence suffe r. He may

prosecu te with ea rnestne ss and vigor, indeed he

should do so. But, while he may strike hard blows, he is not at li ber ty to st rik e fo ul one s. It is as much his duty to refra in fromimproper methods calculated

to produce a

wrongf ul convic tion as it is to use eve ry legitima te means to bring about a ju st

one. I t is fair to say that the aver

age jury , in a greater or lesser degree, has confidence that these obligations, w hich so plainly rest upon the prosecuting attorney, will be fa ithfully observed. Consequently , improper sugge stions, insinuations, and especially asse rtions of personal knowledg e are a pt to carry much weight against the accused when they should prope rly car ry none. Berger v. United States , 295 U.S. 7 8, 88 (193 5); see also Judge , 539 S.W.2d at 344-45. Thus, the state must refr ain from a rgumen t designed to infla

me the jur y a nd should restric t its commenta

ry to matters in evidence or issues at trial. The prosecutor must not express a personal be lief or opinion, butwhether that qualifies as misconduct often depends upon the spe cific te rmin ology used. F

or example, argument predicated by the words "I t

hink" or "I s ubmit" do es not nec essarily indicate an expression of personal opinion. United Sta tes v. St ulga , 5 84 F.2d 14 2 (6th Cir. 1978). The prosecution is not permitted to reflect unfavorably upon defense counsel or the trial tactics employ ed during the course of the trial. See Dupree v. State , 219 Tenn . 492, 410 S. W.2d 890 (1 967); Moore
v. State , 159 Tenn. 112, 17 S.W. 30 (1929) ; Watkins v. St ate , 140 Tenn. 1, 203 S.W. 344 (1918); McCrackenv. State , 489 S .W. 2d 48 (Tenn. Crim. App. 1972). Although there may be no commentary

on the consequences of an acquittal, the prosec ution may point out the grav it y of a particular crime and emphasize the importance of law enforcement. See Statev. Dakin , 614 S.W.2d 812 (Tenn. Cr

im. App. 1980 ); Bowling v. State , 3 Tenn. Crim. App. 176, 458 S.W.2d 639 (1970).

This court has observed that th ere are five gene rally rec ognized areas of prosecutorial misconduct relate d to closin g arg ument:
1. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw. 2. It is u nprofes sional co nduct for

the prosecutor to e

xpress his p erso nal b elief
or opinion as to the truth or falsity of any testimony or evid ence or the guilt of the defenda nt. 3. The p rosecut or should not use arguments calculated to inflame the passions
or pr ej ud ic es of

th e j ur y.-11- 4. The prosecutor should refrain from arg ument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or

by making pr

edictions of the co nsequences of the jury 's verd ict. 5. It is unprofessional conduct for a prosecutor to intentionally re fer t o or argue facts ou tside the r

ecord un less the f

acts ar e matters o f common public knowledge.

State v. G oltz , 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citations omitted).

In this instance, the p

rosecut or, on mor

e than one

occasio n did, in fa

ct, expre ss a perso nal opinion asto the ver

acity of the wit

nesses:
This whole

issue about whether the Ward family had a gun at the creek, they didn't have a gun. She didn't lie about that. Bless her heart, she told the truth.

* * * [Jeff Mathis] is no-count. Don't believe any thing that he say s un less it is corroborated and supported by the other evidence.
* * * Now, Jeff is no- count. He has a criminal record as long a s your arm and ha s been in ja il. You can b elieve th

e parts of his testifying that a re corroborated by

the other evidence.
* * * You can be proud of

law enforcement in this case. Everyone has been wellrepresented

in this case. David Hic

ks and the

sheriff 's d epar tment and

all of the se people, they put the facts in this case together and did not let any evidence

get away from this case. There i s not one iota of proof of any negligence on the part of Houston County in this investigation. They did their jobs. They got their man. They brought you the evidenc e in this case. They are a good crew to work with. You can be proud of your

department in law enforcement in this case. (Emphasi s added.) The statements made rega rding the testimony

of Ms. Ward and the investigation conducted

in this case amounted to improper vouching. Although the e ndorsement of

the testimony of J eff Ma this was less than resounding, the prosecutor did personally endorse this corroborated te st im on y. Expressions of personal opinion by the prosec utor are generally

prohibited as a form of unsworn, unchecked testimony w hich tends to expl oit the infl uence of the prosecutor's off ice and undermine the objective detachment that should separate a lawy er from the advocated cause. See Lackey , 578 S.W.2d a t 107. In Thornton , 1 0 S .W .3 d a t 2 35 , t hi s c ou rt ru le d t ha t c om me nt s b y a prosecutor

that he was "very

proud" of the crime lab and that "they do an excellent jo b" was improper argument. The prosecutor should not have expressed his per sona l opinion ab out Ms. Ward's o r Jeff Mat his' ver acity or cred ibility and should

not have c ommented

on the ef fective ness of the law enforcement investigation of the cr ime. Although the defendant admitted shooting the victim, the degree of homicide, espec ially as betwee n first an d second d egree murder, was a-12-

significant issue at trial and the determination depended in large mea sure on the cr edibility of Ms. Ward and t

he invest igating office rs. Further, the prosecutor ma de sever al statem ents duri ng closing arg

ument whic

h appea r to have be en designed to ar

ouse the p assions of

the jury and to stig

matize def

ense cou nsel:

In despe ratio n, th e [def ense] lawyers su gg es t that Ms. Wa rd would te

ll something other tha

n the truth

about the events th at cause d the dea th of her husband that night. It's offensive to suggest that this son that ran for help a s his father lay bleeding on the ground, to suggest that he wa s in some way involved in a conspira cy to kill - - cover up this crime. How dare y ou? How dare y

ou sugg est that th

is family was involved

in some kind of sham and has lied to this jury? How dare you ? It's a

shame tha

t that's happene d in this tri al. It didn't have to happen.

* * * Whatin the wor

ld did Selw[y ]n Ward do in

this case that contributed in any was to his death. The only thing that he did was to sit up in his chair, confront two (2) wooll y bo ogers c oming out

of the nig

ht.
* * * You know, there's a part of me that wishes he had had a gun that day

. That he had a gun and he ha

d pi cked it up and shot this guy a nd we wouldn't have to be her e to da y. Be cause she would have had every - - Under the law, she would have every r ight - - every

legal right to defend her f amily down there.
* * * Now it's not okay to use a sawed-off shotgun or carr y a sawe d-off shotgun. Who carries a sawed-off shotg un under the seat of a car? An d why did Marshall Mathis ha ve tha t with h im? Whatsort of man is he to saw the barrel - - to saw a - -
saw a shotgun off? There's only one thing. This is a sawed -off s hotgu n. The re's only one thing in life that a sawed-off shotgun is made for, that' s to hurt people.
* * * In this case, the only interested pa rty in this ca se is Marshall Mathis, be cause he is trying to fi nd a way

out of this c ase through his la wy ers. * * * It is first degree, particularly when you take

the other fac ts of the o th er witne sses, throu gh the defendant's own statement and his no-count brother, Jeff, who is a thief. [Jeff Mathis] hasbeen in ja

il for thie very . [Jeff Math

is] was on parole that night when this happened. (Emphasis added.)

In our view, these comments qualified as improper argument. Two, three, and possibly four of the prohibited areas were breac hed by the prosecution. See Goltz , 111 S.W.3d at 6. Moreover,2 Although it has no beari ng on our deci sion i n thi s case, that t he defendant had ini tial ly en tered i nto a negot iate d plea agreement for second degree murder suggests that both the stat e and the defense had reservations about the proof of premeditation.
-13- even if the vic tim had a p erfec t right to have defended himself under these circ umstances, it was undignified

and intem

perate for the prosecutor to suggest that the de fendant should have been sho t. Fi na ll y, i n the fin al argument by the state, the prosecution speculated upon the content of the instructions which the trial cou rt in ten ded to pro vi de t o t he j ury a t t he c onc lu si on o f th e ca se. In Smithv. State , 626 S .W.2d 283, 2 85 (T enn. Crim. App. 1981) , this cour t obse rved that " [i]t is the province of the tri al judge to state t o the jury

the law of

the case , and it is n ot alway s advisab le to counsel to do so in f

inal arg ument bec ause

of t he possibi lity

of erro r in their summation. " While refe rences t o the law during argument are fairly common plac e and while, standing alone, the reference made by the prosecution to the law in this case would not have been a basis for relief, there
was an inadvertent misstatement, later repeated by the trial judge (and addressed in the pre vious section of this opinion), as to the application of the "nature of the conduct" definitio n of inten tional.

In summary , the mar

gin of pr oof in this case supporting a first degree, ra ther than a second degree, murder conviction was narrow. The primary sourc e of evidence of premeditation came f rom t he defendant's own statement to police. 2 See Judge , 539 S.W.2d at 344 (in determining whether improper argument had an

effec t o n the verdict, an appellate court should consider the re lative streng th or weakness of

the case). Our supreme court has held that "the line between harmless and pr ej udicial error is in direct proportion to the degree . . . by which proof e

xceeds the standard required to convict." Delk v. Sta

te , 590 S.W.2d 435, 442 (Tenn. 1979). Further, that the improper comments were made so often, and in fact comprised the major portion of the state's rebuttal argume nt, suggests intentional rather than neg lectful conduct. See Judge , 539 S.W.2d at 344. Of equal importance is that neither the trial court nor the state undertook any measures designed to cure the prejudicial effect of the improper arg ument. See id. Under these cir cumstanc es, it

is our view that the comme

nts made during the state's closing arg ument were so improper that they cannot be classified as harmless. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

B ecau se the err

or cannot be clas sified asharmlessand in re cogniti on of the c onsidera ble burden on the pro secution to refra in from improper methods of argume nt, it rise s to the lev el of pla in
error. See Tenn. R. Cr

im. P. 52(b) ; Smith , 24 S.W.3d at 282-83. That is to say that it strikes at the fairne ss, integrity, a

nd public reputation of judicial proceedings. See Wooden , 658 S.W.2d at 559. Accordingly , a new trial is warranted. See Harrington , 385 S.W.2d at 759.

IV The defendant contends that he was denied the rig ht to a f air a nd impartial jury, see U.S. Const. Art. VI, because

the jurors were permitted to see and interac t with the victim's children. Ini ti al ly, the defe

ndant hasfailed to

support th

is issue with argu

ment or c it ation to a

uth orities. "Issues which are not supported by argument, citation to authorities, or appropriate ref erences to the record will be treated as waived in this court." Tenn. Ct. Crim. App. R. 10(b) ; see also Tenn. R. App. P. 27(a)(7); Statev. Hammons , 737 S. W. 2d 54 9, 55 2 ( Te nn . C ri m. Ap p. 19 87 ). Ac co rd in gl y,-14-

the defenda

nt has wa ived our c onsidera

tion of thisissue. Fu

rther, th e defendant is not

entitle d to relief. The record established that the state initially requested that the children be permittedto sit in the audience and observe the trial. The tria l court g ranted t he reque st but state

d that it wouldgrant
a mistrial if the jury's a

ttention was, in any way , drawn to the children. The state then decided that the children should not be present in the courtroom and sent them into the hall to await transportation from the courthouse. They

sat on the stairs just outside the door used by the jury to exit the courtro om. There w as no proo f that the state inte ntionally placed the children on the stairs to garner sympathy from the jury. More over, there is absolutely no evidence that the jury was made aware that the children were those of the victim or that the jury interacted with the chil dre n at any t im e. In consequence, the defendant is not entitled to relief.

V Fi na ll y, the defendant cites a number of error s with regard to the sawed-off shotg un admitted for demonstrative purposes. Specifically, he c laims that the shotgun should not have been admitted for any purpose a

nd that the trial court erred by using the term "murder weapon" when explaining th e p ur po se of

th e a dm is si on of

th e w ea po n t o t he ju ry.
At trial, the state sought admission of a sawed-off shotgun procured f romthe TBI crime la

b for de monstrati ve purposes, arguing that it was important for the jury to see how the w eapon was broken and how it was loaded. The defendant objected, stating that the mechanics of a

weapon other than that used in the shooting was irrelevant. The trial court admitted the shotgun for demonstrative purposes only. The

admission of demonstrative evidence is within the sound discretion of the trial court. State v. We st , 767 S.W.2d 3 87 (Tenn . 1989); State v. D elk , 692 S.W.2d 431 (T enn. Cri m. App.1985); State v. Wiseman , 643 S.W.2d 354, 365 (Tenn. Crim. App. 1982). In our view, the trial court did not abuse its discretion in admitting the weapon. Moreover, the trial court instructed the jury that the shot gun was not tha t used in the shooting and was to be used only for demonstrative purposes
. The jury

is presumed to foll ow the instruct ions of the court. See State v. Smith , 893 S.W.2d 908, 914 ( Tenn. 199 4); State v. Woo ds , 806 S.W.2d 205, 211 (Tenn. Crim. App. 1990)

. Thus, any err

or would qualify as ha

rmless. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

The defendant correctly

points out that the trial court used the term " murder w eapon" in its instructions to the jury

regarding the admission of the shotg un. When the error was brought to the court 's attention, however, it issued a n immediat

e curat ive instru ction. As indicate d, this cou rt will presume that the jury followed the instruction. See, e.g. , Smith , 893 S.W.2d a t 914. The

error w ould be harml ess.
In summary, the evidenc e supporting the element of premeditation is sufficient. Because the prose cutor 's comments d uring c losing a

rgumen t were im proper, and bec ause

the error does not qualify as harmless, however, the de f endant's conviction is reversed, a new tr ial granted, and the cause remanded.-15- ___________________________________ GARY R. WADE, PRESIDING JUDGE