### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Bri efs May 6, 2003
STATE OF TENNESSEE v. CARLOS G REEN Direct Appeal from the Criminal Court for Shelby County No. 00-14522 Carolyn Wade Blackett, Judge

No. W2002-01963-CCA-R3-CD - Filed Nove mber 4, 2003

The defendant was fou nd gui lty of first deg ree premeditated murder and sentenc ed to life imprisonme

nt. The defendant now appeals contending that (1) the trial court erred by allowing the defenda nt’s impea

chment wi

th inadmiss ible evidence, and (2) he was de nied a fu ndamenta lly f air trial because of improper qu es tions and argument by the prosecution. We hold that (1) the defendant’s impeachment was improper, however, the er ror was har mless, and (2) the State’s questions and argument were not improper, and eve n if they were

improper, they did not rise to the level of plain error. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERE TT W IL LI AMS , J., deliver ed the opinion of the

court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined.

Robert Wilson Jones, District Public Defender; and Garland Ergüden, Cathy A. Hailey, and Micha

el J. Johnson, Assistant Public Defenders, for the appellant, Carlos Green.

Paul G. Summers, Attorney General and

Reporter ; Kathy

D. Asling er, Assis tant Attor ney Genera l; William L. Gib

bons, District

Attorney Gene

ral; and Kim Kea Harris and Jerry R. Kitchen, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION

The defenda

nt, CarlosGreen, was foun d guilty on May 9, 2 002, of the first degree premeditated

murder of Reedell Seals and was sentenced to life imprisonm ent. His motion for a
new trial wa s denied o n July 17, 2002. T

he defe ndant the n timely filed his n otice of

appeal o n August 7, 2002. He contends that (1) the trial court erred by allowing the

defendant’s impeachment withinadmissib le evide

nce, an d (2) he w as denie d a funda mentally fair tr ial because of improper questions and argument by the State.-2- Facts

Antoine Davis tes tified tha t on the nig

ht b efore t

he sh ooting, t

he defe ndant ca me home to their house on Pontotoc and told him that he a nd Reedell Seals (t

he victim in this cas e) had “ got into it” with some men in the neighborhood. The defendant told Davis that the victim owed one of the
men some money. As the men approached them, the victim fled. The defenda nt shot atthe men and sta ted to Davis that he thought he had hit one of them. Davis testified that the defenda nt did not seem upse

t about the

incident

. Davis stated that the victim came by the next da y lo okin g for his bag. Davis woke the defenda nt, and he a

nd the vic tim

began talking . Davis te stified th at he did not know what they we

re saying. They appe ar ed as if th ey wer e talking “with cool and calm heads.” The vic tim and the defendant left to look for

the bag on t

he railr oad trac ks, while D avis and h

is girlf riend, L atoy a Jones, stay ed beh ind. About

ten minute s later, D avis and Jones follow ed. They soon spotte d the vict

im and the defe

ndant wa lking up a

nd down the

tracks, like they

were loo king for someth ing. Davi s testified that, just before the sh ooti ng, th e vict im and the de fendan t loo ked li ke the y were talk ing. He said that he did not hear any shouting or see any one throw a punch. Before the defendant

shot him, the victim looked like he was bending over to pick something up. The defendant shot him, and he fell to the ground. Davis testified that the defendant was a short distance behindthe victim and to his right

at the time he shot him. Davis did not see where the gun came from, but stated tha t he had known the defendant to carry a gun prior to September 17, 2000.

On cr os s- ex am in at io n, Da vi s t es ti fi ed th at he an d La to ya smoked marijuana

the night before th e shooting. T hey wer

e also smoking the next morning as the victim and the defendant left. He stated that he did see some workers as he and Latoy a w ent up the path to the tracks. He said that the victim and the defendant were talking, but he c ould not hear what they were say ing. Davis stated that he was pa

yin g atten tion to his girlfrie

nd at the t

ime of the

shooting . Davis testified that he sometimes has vision problems. However, on re-direct, Davis said that he wa s not having any problems with his vision the morning of the shooting.

Lat oya Jones testified that as she and Davis were walking up the r ailroad tracks, she saw the victim looking in the bushes. T he victim turned around and pointed at her and Davis, then he continued looking in the bushes. She then saw the defendant reaching into his pocket. At about the
sametime, she stumbled and looked down to regain her footing. As she wa s looking down, she heard a shot. Jones stated that she “wasn’t really paying attention.” Jones testified that she saw a silver gun in the defendant’s hand. She stated that the defe ndant turned around

a nd was “rapping
some kind’a

song . . . like nothing never did happen.” Jones said that the defe ndant shot the victim in the head. She also testified that the defendant called her the day after the shooting and asked her notto testify . He said

that he wo

uld get l ife if she testified, but he would get of f if she d id not. Jones said that she hung up the phone and never heard fr om him again.

On cross, Jones testified that she and Davis had been smoking marijuana the night before the shoot ing. She denied that she smoked any the morning of the shooting. Jones stated that she never
sa w a gu n t ha t d ay.-3-

On re-direct, Jones stated that, in fact, she did see the defendant with a gun in his hand after he shot the vi ctim. She s aid that n ei ther the defenda nt nor the victim had

a bag o r any thing wit h them on the

tracks.

Jason Barry

testified that he was working at Southwest Community Colleg e the morning of the shooting. He said that he first saw two men walk by , and then a girl and a guy . Barry

stated that he was not really pa

ying a ttention until he heard a

gunshot

. He then saw two people leaving the ar ea together. The def

endant so on followed. Barr y te stified th at he ask

ed the defendant

if there was a body down there. The defendant said no and hurried away. He stated that he did not see any thing in any one’s ha

nds. Barry

did not actually see the shooting . Matthew McDivitt testified that he was also working near the scene of the shooti ng that m

orning. McDivitt sa

id that he saw four people go into th e woods a nd three come out. He did not

actually see the s hooting; he only heard a shot.

Dr. Cynthia Gardner

testified that she performed the autopsy on the victim. She stated that the gun was fired within two fee t of the victim. Dr. Gardner testified that the shot came from the right, back to front, and slightly downward. She could

not say exactly where the gun was in relation to the body when the

victim was shot. She stated that the victim had some injuries around his left eye and cheek. Dr. Gardner testified that the injurie s were consistent with a f ace-dow n fall. The victim had

no injurie s consiste

nt with def

ensive w ounds.

Dr. Gardner testified on

cross that the victim had a .12 blood alcohol content at the time of death. There was no evidence of drug s in his system. She stated that the injuries around the victim’s left eye c ould have been from a blow. Dr. Gardner ag ain stated that she could not tell what position the body or gun wa s in when the shooting occurred. The only witness called by the de

fense was the defendant himself. The defendant testified that he had kn own the vi ctim for a pproximate

ly five or six years. He stated that the nig ht before the shoot ing, he and the victim were out in the ne ighbo rhood trying to get dru gs. As t hey were wal king, they came

across a group of men. The def endant statedthat he recognized at least one of the men
as the man ha

d shot the d

efenda nt on a pre

vious occ asion. One of th e men “s tarted going off on Reedell.” The man said that the victim owed him money f or drugs. The victim told the m an that he would pay him later, and he and the defendant walked away . The victim and the defe ndan t next stopped at a liquor store. The defendant stayed outside while the victim went into the store. Before the victim went into the store, he took his mone y out of a pouch and gave the pouch to the defenda nt.
As the defendant was standing outside, the men from the earlier confr ontation drove up. The defendant testified that he had

a gun on him. He too

k the gun out and p laced it in the bag , becau se he thought

there was going to be trouble. When the victim

came out of the sto re, the d efenda nt told him that the me

n were lo oking fo

r him. As the defendant and the victim walked towards the bac k of the store, they

noticed the man whom the victim owed money to and another man at the end of the street. Two more men came from the other end of the street and

started surrounding the

victim and the defendant. The defendant unzipped the bag with the gun because “he knew something wa s about to go down.” The man started y elling at the victim

about the money he ow ed him. The defendant said th at he told t he victim to just pay him. At that time, the man bega n pushing the-4-

defenda nt, and the de

fendant pushed ba

ck. The d

efenda nt p ulled out his gun a

nd shot in the air above the man’s head. He shot two more times, and the man fe ll to the ground.

The defendant ran, because he thoug ht that he had shot the man. He found out later that he didnot actually hit any

one when he s hot. He di d not see the victim at that time. As the defendant
w as running away , he put the gun back in the bag and thre w it by the railroad tra

c ks. He the n returned home and told D avis and Jones that he had shot someone. The defendant told them that he did not know where the victim was. He then went to sleep.

The next morning, Davis woke up the def endant a nd told him

that the victim was at the door and wa nted his ba

g. The d efenda nt said tha

t he told the

victim tha

t he thre w his bag

near th e railroad tracks the night before. The vi ctim told the defendant that when the men started surrounding them the night before, he ran behind the

auto parts store. The victim told him that the
men caugh

t him later and took h

is money . The def

endant st ated tha t the victim was very

upset about nothaving

any money to pay his rent. The two me

n th en left to go loo k for the bag. Davis and Jones were outside of the house smoking a “blunt.” The de fendant testifi ed that as the two men
were walking down the street, the victim was stumbling because he was intoxicated. The defendant stated that the victim was still upset about his mon ey and the missing bag. The two exchanged words at the endof the pathway leading to the tracks. The defenda nt said that he was not

angry with the victim , although he was “ticked off” that the victim ra n away the

night before. He said that he
saw some workers as he first came up the pathway . On the pathw ay , the def endant to ld the vic tim, “[I]f y ou wasn’t my homey ,” I would “kick y our butt right now.”

The victim and the defendant then walked up the tracks looking f or the bag. The defendant said that he did not know exactly where he had thrown the bag. As he and the victim were looking for the bag, they

were still arguing about

what had happene d the nig

ht befor e. The de fendant said he again t

old the vic tim, “[I ]f yo

u weren ’t my

homey , I’ll kick y our butt.” The victim told the defendant that he did not think the victim could do that. The defenda nt said in c ourt that t

he victim
was a “small guy ,” about five feet, four inches tall and 185 to 200 p ounds. The defendant is about 265 pounds and younge

r than the victim. The defenda nt said tha

t the victim told him, “ I thin k I’ll whip your young ass. ” The t wo men then r eturn ed to l ooki ng for t he bag.

The victim turned around an d po inted dow n the tra cks at Da vis and Jone s, who we

re just
com ing off of the pathway . At about that time, the victim found the bag. The defendant furthe r testified that

the victim unzipped the bag and pulled out the g un. The de

fendant said that, because of his threatening the victim and because the victim had lost his money the night before, he thought the victim was going to shoot him. The def endant s tated that the victim pulled the gun out of the bag by t he top par t. He said that he punched the victim with his right hand and grabbe d the back of the gun with his left hand. The defe ndant t estified that he pu

nched the victim ag ain, the victim stumbled, and the de

fendant then gr abbed the front of the gun . The def

endant sa id that the victim
came up at him, and he sh ot him. The defenda nt stated t hat he be lieved the victim

would have shot him, because

he knew t

h e victim was drunk and upset. The defendant said that he wa s not trying to kill the victim, only “keep him off of me.” He said that he was not “try ing to s hoot him in his h ead.” The defendant stated that after the victim fell, it occurr ed to him what had just happened. He grabbed the bag and r

an. The defendant said that he put the gun bac k in the bag and

threw it over-5-

a wall. He then ran back home. He said the police showed up soon af te rwards, and he told them he was responsible.

On cross-examination, the State began by questioning the defendant about the statement he made to police the day of the shooting . He said

that at first, he told the police someone else had shot the victim. Counsel asked the defendant if he told Sergeant Owe ns that a man named Edward Long shotthe victim

. The defendant stated that he did not remember telling he r that. Counsel then asked the defendant “if [Sergeant Owens] say s that you told her that a Edwa rd Long did it,” would she be lying. The de

fendant responded, “y es.” Counsel asked the defendant if he told the police that the purpose of bringing the v

ictim to the tracks was to “beat him down.” The defenda nt stated that he didnot tell them that. The defendant testified that he never talked to the work er (Ba rry ). He sa

id that it was “Pe etie” (D arren F leming) who spoke

to the worker. He testified that “Peetie” does not look anything like him. The de fendant said that Jones was lying w hen she said that he walked away from the shooting rapping a song. The de fendant stated that

Davis wa s also ly

ing about the eve

nts surrounding the shooting. He testified that he did not have a g un with him when he left the house that morning. Counsel then asked the defendant “if Fleming [“Peetie”] comes in here and testifies that, that gun was on y our hip when you walked out that door that morning, he’ll by lying too, right[.] ” The d efendant responded, “y es.” When asking the defendant about fra ming another individua l, Counsel stated, “[t]hat wasa lie, just like y our clai m of self d

efense is a lie , cor

rect [.]” Counsel next asked a series of questions about a letter sent to Antoine Davis. The defendant denied writing the letter. The trial court ruled the letter inadmissible, but did allow counsel to ask questions from it fo r impeachment pur

poses.
The State next offeredrebuttal witnesses. The first to testify was Darren Fleming (“ Peetie”). He stated that he was at the house on Pontotoc the morning of the shooting. He said that he heard the defendant and thevictim talking about a bag, and they then left together. Fleming testified that he did not see the defendant with any thing when they

left. He stated tha t he saw th

e defendant with
a silver gun earlier that morning, but did not see it when the defendant

left. He said that he was not present near the railroad tracks a nd did not talk to any worker. Sergeant Venice Owens testified

that she took

the statement from the defendant on the day of the sh ooti ng. She stated the defendant initially told her that he witnessed another man, Edward Lane, shoot the victim. After Owens indicated to the defendant that she had e vidence to the contrary , he recanted his story

. The defendant told Owens that he took the victim down the tracks “so that he could b eat the v ictim down, because the victim had upset him the night before.”The defenda nt then ad mitted to sh ooting th

e victim. Analysis

The defendant contends on appeal that the trial court erred by allowing him to be impeached withinadmissible evidence. During the State’s examination of Antoine Davis, he was asked about
a letter that he had received. The let ter asked Davis and La toya Jones not to testify

against the defenda nt. The retu

rn addre ss indica

ted that th e letter was from a “Sunge” Green, 404 Jasper Core, Virgini a Beach, Virginia. The enve lope also had a stamp indicating that it was from the Shelby County Jail. The defendant objected to the admissibility of the letter. The trial court he ld thatthe-6-

letter could not b e introdu ced into e vidence because the State had not proven that

the defendant was the auth or of th e letter. The State again made re ference to the letter during its cross-e xamination of the defendant, and the court aga in found that the letter could not be admitted i nto evid ence. However, the court did find that the State could question the defendant ab out th e letter for impeachment

purposes. The State then proceeded to cross-examine the def endant by making
numerous references to the c onte nts of the letter a nd asking

the defe ndant if he wrote t

hese comments. On each occasion, the defendant de nied t h at he wrote the letter. No special jury instructions were given relating to this evidence

. Alth ough it is a close q ue stion as to whether the letter was sufficiently authenticated to be admitted for the jury’ s consideration, the trial court concluded it was not sufficiently authenticated. For purposes of this appeal, we will not go behind this ru li ng. Nevertheless, in spite of the trial court’s ruling, the state w as a ble to exten sively

utilize the

contents of the le

tter during cro ssexamination of the defendant. In lig ht of the trial court’s ruling on l ack o f authentication, we conclude the trial court

erred in allowing the extensive refere nces to the contents of

the letter. See Tenn. R. Ev id. 403. Howev er, a violation of an evidentiary rule does not mandate reversal if the “error was more probably

than not harmless.” State v. Ma rtin , 964 S.W.2d 564, 568 (Tenn. 1998) (citi ng United Sta

tes v. Ba rrett , 703 F.2d 1076, 1081-82 (9 th Cir. 1983)). Latoy a Jones testified that during her phone conversation with the defendant, he asked her notto testify

against him. This was the essence of the testimony concerning the

letter to Davis. The excerpts from the letter read by counsel are essentially

asking the witnesses not

to testify ag ainst the defenda nt. The questioning of the defendant about the letter was merely

cumulative. In light

of the te s timonyby Jones and the other evidenc e against the defendant, we c annot say that the improper questioning allowed by

the court “affirmatively

appear[s] to have affected the result of the trial on the merits.” See Tenn. R. Crim. P. 52(a).

The de fendant next cont ends that the State improper ly q uestione d the def

endant du ring crossexamination and ma de imp roper r emarks durin g closi ng a rguments. The specific questions and remarks that the d

efenda nt t akes issue with o n appea l were not objecte d to at tria l or raise d in his motion for a new trial. Therefore, c on siderati o n of the issues has been waived on appeal. See Tenn. R. App. P. 3(e), 36(a).

The defenda

nt urge s this Court

to conside

r the issue under the plain error doctrine. “An error which has affected the substantial rights of an accused may

be noticed at any

time, even though not raisedin the motion for a new trial or assigned as error on appeal, in the discretion of the appe llate court where necessary

to do substantial justice.” Tenn. R. Crim. P. 52(b). For a court to determine that plain error e xists, (a) the record

must clea

rly establish what occ urred in the trial court; (b) a clear and uneq uivocal r ule of law must have been breached; (c)
a substantial right of

the accused must have been adverse ly affe cted; (d) the accused did not waive th e issue f or tactic al reasons ; a nd (e) consideration of the error is “necessar y to do substantial justice.”-7-

Statev. Smith , 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson , 899 S.W.2d 626, 641- 42 (Tenn. Cri m. App. 19 94)). All five factors must be established before plain er ror will be recognized. Smith , 24 S.W.3d at 282-83. Consideration of all of the factors is unnecessary when the record

demonstr

ates tha t at least one of the

factor s cannot b e establ i shed. Id. at 283. Ad di ti on al ly, the “‘plain error’ must [have been] of such a grea t magnitu de that it

probably cha

nged the outcome of the trial.” Id. (quot ing Adkisson , 899 S.W.2d at 642).

In his brief, the defendant addresses three a reas of impr oper argument. I n determining whether statements made by the State c onstitute rev ersib le error, it is necessary to determine whe ther the statements were improper and, if so, whether the imprope r statements affected the verdict. See State v. Sutton , 562 S.W.2d 820, 823 (Tenn. 1978); Harring ton v. State , 385 S.W.2d 758, 759 (Tenn. 1965). Anappella te court should consider the following five factors in evalua ting whether improper comments a

ffecte d the ver

dict to the prejudic e of the d

efenda nt: 1. The conduct complained of viewe d in conte xt and in lig ht of the f

acts and circumstances of the case. 2. The curative measures undertaken by the court and the prosecution. 3. The inten

t of the pr osecutor in making

the improp er state

ment. 4. The cumulative effect of the improper conduct and a ny other errors in the record. 5. The relative strength or weakne ss of the case. Judge v. St

ate , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). During the State’s cross-examination of the defendant, he was asked about whether he had
a gun with him when he left the house the m orning of the sh ooti ng. The follo wing ex change
occurr ed betwe en the Sta

te and the defenda nt: Q: So, your testimony

is that you didn’t

have your g

un that morning when y ou left the apartment there and went with Seals on t he railroad track; is that y our te st im on y? A: Yes, and

that’s wh at Antoine

and L atoy a told the

m. Q: So if Mr. Fl eming c omes in he re and te stifies th at, that gun was onyour hip when you walked out that doo

r that mor ning, he ’ll be ly

ing too, r ight? A: Yes, he w ill. During the State’s rebuttal evidence, Darren F leming was called as a witness. Although he did not specific ally

testify that he saw a

gun on the defendant’s hip when he left that morning , he did testify that he saw the defendant with a gun bef ore the defen dant left that morning. The State was not improper in attempt

ing to at tack the credibi lity

of the defendant

. The defendant also contends that the State’s remarks to the defendant about ly ing at various times throughout cross were improper. The defend ant in this case initially denied shooting the victim. He concocted a story placing the blame on another person. When fac ed with incriminating evidence to the contrary , he recanted his story and admitted to the shooting. The defendant testified at trial that the other witnesses were ly ing and that he was telling the truth. The remark s by

the State
arose in the context of the defendant’s accusing other witnesses of lying

and inconsistencies in the defendant’s story. I

t canno t be said that the questions by the State af fected the verdict to the prejudic e of the d

efenda nt.-8-

Fi na ll y, the defendant cont ends tha t remark s made by the State during c losing a

rgumen ts were improper. In his brief, the def endant quotes a large portion of the State’s closing argument and asserts that “all of

the comments and arguments” were imprope r. Our review of the State’s entire closing argume nt does not

reveal that the Sta

te made im

proper a rgumen t.
After reviewing the record and c onsidering the arguments presente d by the defe nd ant, w e hold that even if the State’s questions and argumen t comp lained of could be characterized as improper, they

were not of “such a great magnitude that [they] probably changed the outcome of the trial.”
Conclusion

We hold that the defendant’s impeachment was improper; howeve r, the error w as harmle ss. Ad di ti on al ly, we hold th at the St ate’s qu est ions and argument complained of were not improper , and even if they w ere improper, they did not rise

to the lev el of pla

in error. Accordingly , we affirm the judg ment of the

trial cou rt.

______________________________ JOHN EV ERETT WI

LL IAMS, JUDGE