                                                                                           08/10/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               September 7, 2017 Session

 STATE OF TENNESSEE v. MAURICE BAXTER aka MAURICE GROSS

                  Appeal from the Criminal Court for Shelby County
                   No. 13-03895       James C. Beasley, Jr., Judge
                      ___________________________________

                           No. W2016-01088-CCA-R3-CD
                       ___________________________________

THOMAS T. WOODALL, P.J., concurring.

       I write separately for the sole purpose of reiterating my belief that a prosecutor’s
error in arguments to a jury should not be designated as “prosecutorial misconduct” or
other words of similar import. See State v. Timothy McKinney, No. 2016-00834-CCA-
R3-CD, 2018 WL 1055719 (Tenn. Crim. App. Feb. 23, 2018), Woodall, dissenting.

       The term “prosecutorial misconduct,” or a similar designation, as it relates to
statements made by a prosecutor during arguments to a jury, has been used in Tennessee
Supreme Court cases at least as far back as 1965. See Harrington v. State, 215 Tenn.
338, 385 S.W.2d 758, 759 (1965) (“The argument and conduct of counsel has been
discussed by this Court in a number of cases. . . . The general test to be applied is whether
the improper conduct could have affected the verdict to the prejudice of the defendant.”)
(emphasis added).

       In 1984, our supreme court held,

        We approve the factors adopted by the Court of Criminal Appeals in
        Judge v. State, 539 S.W.2d 340 (Tenn. Crim. App. 1976), to be
        considered in determining whether prosecutorial misconduct has
        affected the verdict to the prejudice of defendant and consequently
        amounts to reversible error.

State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (emphasis added).

       The five factors set forth in Judge are as follows:

        1.    The conduct complained of viewed in context and in light of the
              facts and circumstances of the case.
       2.    The curative measures undertaken by the court and the prosecution.

       3.    The intent of the prosecutor in making the improper statement.

       4.    The cumulative effect of the improper conduct and any other errors
             in the record.

       5.    The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). In Judge, the erroneous
argument was referred to as “improper conduct.” Id.

      In State v. Cauthern, 967 S.W.2d 726 (Tenn. 1998), the analysis section of the
opinion which addressed the prosecutor’s closing arguments was labeled “prosecutorial
misconduct.”

      In 2003, addressing an issue of a prosecutor’s argument, this court specifically
gave a more definitive definition of erroneous arguments by a prosecutor by relying on
American Bar Association standards of conduct. State v. Goltz, 111 S.W.3d 1, 6 (Tenn.
Crim. App. 2003). The court specifically stated:

             It is impossible to set out in detail what can and cannot be said in
       closing argument. Various factors are involved in this determination
       including the facts of the particular case and oftentimes responses to
       argument of opposing counsel. In this regard, we find the AMERICAN
       BAR ASSOCIATION STANDARDS RELATING TO THE PROSECUTION
       FUNCTION AND THE DEFENSE FUNCTION helpful. Although these
       standards set forth objectives for professional conduct, they have, to a
       large degree, been adopted by our supreme court in case decisions and,
       to that extent, are directory.

            Within the closing argument, five general areas of prosecutorial
       misconduct are recognized:

              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 unprofessional conduct for the prosecutor to express his
              personal belief or opinion as to the truth or falsity of any
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               testimony or evidence or the guilt of the defendant. See State v.
               Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999); Lackey
               v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978); TENN.
               CODE OF PROF’L RESPONSIBILITY DR 7-106(c)(4).

               3. The prosecutor should not use arguments calculated to
               inflame the passions or prejudices of the jury. See Cauthern, 967
               S.W.2d at 737; State v. Stephenson, 878 S.W.2d 530, 541 (Tenn.
               1994).

               4. The prosecutor should refrain from argument 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 predictions of the
               consequences of the jury’s verdict. See Cauthern, 967 S.W.2d at
               737; State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).

               5.    It is unprofessional conduct for a prosecutor to intentionally
               refer to or argue facts outside the record unless the facts are
               matters of common public knowledge.

        STANDARDS RELATING TO THE PROSECUTION FUNCTION AND THE
        DEFENSE FUNCTION §§ 5.8 - 5.9 Commentary (ABA Project on
        Standards for Criminal Justice, Approved Draft 1971).

Id.

       Factors 1, 2, and 5 in Judge begin with the words, “[i]t is unprofessional conduct .
. .” Even though factors 3 and 4 do not begin with these explicit words, it is clear that the
opinion concludes they also “set forth objectives for professional conduct.”

       I respectfully believe that, in hindsight, it was a mistake for this court to so define
error by an attorney in his or her jury arguments in such explicit terms of unethical
conduct. It is not the responsibility of this appellate court to hold, in effect, that an
attorney has violated any of the Rules of Professional Conduct. See Tenn. Sup. Ct. R. 8.
Indeed, it is the Tennessee Supreme Court, and the Board of Professional Responsibility
of the Supreme Court of Tennessee, which have the sole authority to determine if ethical
violations have been committed. Tenn. Sup. Ct. R. 9.

      For this reason, I feel that errors by a prosecutor’s improper arguments to a jury
should be referred to only as “improper prosecutorial argument,” with no more and no
                                            -3-
less significance to ethical conduct than a trial court’s ruling, including but not limited to
a suppression motion or an evidentiary ruling on a hearsay objection. I am not aware of
any ruling of this court wherein a trial court’s error is defined in the term of “judicial
misconduct.”

       Also, it seems to be quite unfair that only prosecutors are caught up in the net of
having their erroneous arguments defined by an appellate court in terms which infer that
an ethical violation has occurred. I am not aware of any opinion of this court labeling an
improper argument by defense counsel as “defense attorney misconduct.”

        As cited above, our supreme court has used the term “prosecutorial misconduct” to
describe prohibited arguments. However, in the unanimous opinion of our supreme court
in State v. Jackson, 444 S.W.3d 554 (Tenn. 2014), a constitutionally prohibited argument
by the prosecutor was not labeled as “prosecutorial misconduct.” The improper remark
by the prosecutor in that case was held to be non-structural constitutional error. It was a
statement at the beginning of rebuttal argument, with attendant emotion and delivery by
the prosecutor, that commented on the defendant’s choice to exercise her constitutional
right to not testify. The argument “implicitly encouraged the jury to view Defendant’s
silence as a tacit admission of guilt.” Id. at 589. Although the erroneous argument was
non-structural constitutional error, in reviewing the appropriate standard for determining
whether error is reversible error or harmless error, the Court in Jackson also addressed
the standard for non-constitutional error, which is the type of error in the case sub judice.
I have meticulously reviewed the portion of the Jackson opinion addressing the issue
regarding the prosecutor’s erroneous jury arguments. In discussing both non-structional
constitutional argument error and non-constitutional argument error, the Court defined
the erroneous arguments as “improper prosecutorial argument” or “constitutionally
impermissible,” never using the term “prosecutorial misconduct.” Id., 444 S.W.3d at
585-93; Id., n. 50 (“a defendant bears the burden of proving prejudice when prosecutorial
argument is merely improper.”)

      The argument resulting in reversible error in Jackson was obviously
unconstitutional comment on the defendant’s choice to not testify. Id. at 585. In its
opinion, our supreme court chose not to label this in the term of “prosecutorial
misconduct.” As stated above, the Court described it as both “improper prosecutorial
argument” or as “constitutionally impermissible.”

      Consequently, under Jackson, I am comfortable not defining impermissibly
erroneous or even constitutionally prohibited arguments by the State as “prosecutorial
misconduct.”
                                 ____________________________________________
                                 THOMAS T. WOODALL, JUDGE
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