         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 4, 2007

                 STATE OF TENNESSEE v. BENJAMIN BROWN

                      Appeal from the Criminal Court for Shelby County
                       No. 96-13456    Carolyn Wade Blackett, Judge



                      No. W2006-02762-CCA-R3-CD - Filed July 2, 2008


The defendant, Benjamin Brown, was convicted by a Shelby County Criminal Court jury of first
degree felony murder in the perpetration of aggravated child abuse and aggravated child abuse. For
the felony murder conviction, he was sentenced as a violent offender to life in the Department of
Correction, and for the aggravated child abuse conviction he was sentenced to twenty-five years, to
be served concurrently. In this direct appeal, he claims (1) that the trial court improperly allowed
evidence of the defendant’s bad acts without conducting a hearing as required by Tennessee Rule
of Evidence 404(b), (2) that the trial court committed plain error in allowing a state’s expert witness
to testify about the victim’s cause of death without establishing a proper foundation, (3) that the
court erred in failing to replace a juror who indicated she had some knowledge of one of the state’s
witnesses, (4) that the trial court failed to give instructions on lesser offenses, and (5) that he is
entitled to a new trial based upon prosecutorial misconduct during closing argument. We hold that
although the state made an improper rebuttal argument, the error was harmless, and the remaining
issues are without merit. We affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER , J.,
and DAVID G. HAYES, SR. J., joined.

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Benjamin
Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and John Wheeler Campbell, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant was convicted of aggravated child abuse and felony murder committed during
the perpetration of aggravated child abuse relative to the injury and ultimate death of his daughter.
After receiving concurrent sentences of twenty-five years and life, the defendant appealed to this
court. This court considered the defendant’s issues relative to sufficiency of the evidence and
sentencing but held that consideration of the remaining issues raised was waived by the defendant’s
failure to file a timely motion for new trial in the trial court. State v. Benjamin Brown, No. W1999-
00327-CCA-R3-CD, Shelby County (Tenn. Crim. App. Oct. 24, 2000). The case was later remanded
to this court by the Tennessee Supreme Court for reconsideration of our ruling that the defendant’s
dual convictions violated constitutional double jeopardy protections, and we reinstated the
defendant’s aggravated child abuse conviction. State v. Benjamin Brown, No. W1999-00327-CCA-
RD-CD, Shelby County (Tenn. Crim. App. Aug. 2, 2002).

        The defendant filed a post-conviction petition seeking a delayed direct appeal. He was
allowed to file a motion for new trial, which was denied after a hearing. The defendant then filed
the present appeal.

       The facts of the defendant’s case were summarized by this court in his first appeal:

                       The appellant and Tammy Huff met and started dating in
               1992. A few months after they began dating, the couple announced
               they were getting married. Ms. Huff was pregnant at the time. The
               couple married on April 26, 1994, at the Hernando, Mississippi, home
               of Tammy’s father, James Riley Banks. On the evening of his
               daughter’s marriage to the appellant, Mr. Banks received a telephone
               call from an anonymous female, later identified as A[rd]ena McCoy,
               informing him that the appellant was the father of her children. Mr.
               Banks disclosed this telephone conversation to his daughter and
               informed his daughter that her new husband was not welcome in his
               home. Tammy left her new husband less than twenty-four hours after
               they were married, subsequently divorcing the appellant.

                      On September 16, 1994, Ms. Huff gave birth to a daughter,
               Ashley Denise. The two resided with Ms. Huff’s parents at their
               Hernando residence. In the summer of 1996, Tammy Huff and the
               appellant reconciled and were remarried on July 12, 1996. In August,
               the appellant, Huff, and their daughter moved to an apartment in
               Memphis.

                       Soon after moving into the apartment, Tammy began “potty
               training” Ashley. During the time, Tammy recalled that the appellant
               “would fuss at [Ashley] and tell her that if she didn’t get potty-trained
               he was going to give her a whipping.” Although Tammy never saw
               her husband spank Ashley, she did hear him threaten to “whip” her
               for not using the “potty.” Tammy admitted that when she confronted
               the appellant about his threats, he stated that he was not “going to


                                                 -2-
whip her.” She further admitted that the appellant would chastize her
for physically reprimanding the child.

        Ms. Huff testified that she was unhappy in her marriage to the
appellant. On September 12, she decided to leave him. She
telephoned her parents and told her father that she wanted to come
home. Mr. Banks informed Tammy that “if she was going to come
[home] that she was going to stay.” After Tammy made this
telephone call, the appellant confronted her with his disbelief that she
was actually going to leave him. She explained that the appellant
became angry and “he like started choking me.” The appellant
relinquished his hold and again began asking Tammy why she was
leaving him. She responded, “Because you’re mean and I don’t trust
you.” “[The appellant’s] eyes like turned red, and ... he started coming
after me . . . .” He placed a knife to her throat and warned her, “If you
leave me, you know, I can, you know, I can kill you. I don’t have
anything to lose.” He then forced Tammy to telephone her parents
and tell them that she was not going home.

       Ms. Huff testified that the following morning she took Ashley
to daycare. The appellant got off work at 12:30 and he picked Ashley
up from the daycare center. Tammy did not see Ashley again until
6:30 that evening when the appellant brought Ashley by Tammy’s
place of employment. Tammy was eating her dinner at this time.
Ashley sat on Tammy’s lap and ate some chicken nuggets and a
brownie. Ashley appeared healthy at this time. Shortly thereafter, the
appellant and Ashley left and Tammy returned to work.

        At approximately 8:00 p.m., Rita Griffin, a neighbor of the
Browns, returned to her residence at the Woodlake apartment
complex in Memphis. As she reached the top of the stairs leading to
her apartment, she saw the appellant coming out of his apartment.
The appellant was carrying his two-year-old daughter, Ashley. The
child “was laying on his shoulder . . . it seemed like she was asleep.”
Ms. Griffin entered her apartment and made a telephone call. Within
two minutes, she heard “beating” at her door and asked who was
there. The appellant identified himself and exclaimed that “[his] baby
fell down the stairs.” Ms. Griffin let the “very upset” appellant inside
her apartment. The appellant told her that he had sat the child on the
steps while he returned to his apartment to get his keys. When he
came back outside, he saw that Ashley was on the ground; “she had




                                  -3-
                    fallen down the steps.”1 Ms. Griffin then telephoned for medical
                    assistance. Meanwhile, the appellant sat down in a chair and began
                    rocking the child, saying “Ashley, Ashley, wake up.” Ms. Griffin
                    observed that the child was gasping for breath and was trying to open
                    her eyes. The appellant was shaking the child in an attempt to revive
                    her. The 911 operator obviously overheard the comments and
                    advised Ms. Griffin to tell the appellant not to shake the child. The
                    appellant then attempted to give the child CPR. During this time, Ms.
                    Griffin was unable to observe whether the child had any bruises, cuts
                    or abrasions on her legs, arms or face.

                            At 8:30 p.m., Tammy received a telephone call from the
                    appellant. He informed her that Ashley had fallen down the stairs.
                    Tammy could hear an ambulance in the background. The appellant
                    drove to Tammy’s place of employment and the two proceeded to
                    LeBonheur Hospital. On the way to the hospital, the appellant told
                    Tammy that he forgot his keys and he sat Ashley on the steps. When
                    he came back outside, Ashley was at the bottom of the steps. She
                    stated that the appellant, despite emphasizing that Ashley’s condition
                    was serious, was not crying. The appellant attempted to console his
                    wife, telling her that Ashley was going to be fine.

                            Dr. Jeffrey Eugene Schmidt, a pediatric intensive care
                    physician, testified that he was on duty when twenty-four month old
                    Ashley Brown was brought to the hospital. Ashley was transferred to
                    ICU from the emergency room at approximately 2:00 a.m. The
                    reports from the ER indicated that the patient had “severe neurologic
                    injury.” Upon admission to ICU, it was determined that Ashley had
                    “severe neurologic devastation, severe brain injury.”2 “From direct
                    observation, there was no evidence of any external trauma. No
                    scratches, bruises, bumps, no swelling, no cuts.” A CAT scan did not
                    show any signs of severe bleeding. However, the attending physicians
                    observed retinal hemorrhages that were classified as “fairly severe.”
                    Dr. Schmidt testified that based on the presence/absence of injuries,
                    he determined that the injury was what is known as
                    “acceleration-deceleration syndrome.” Specifically, he explained:


         1
             The stairs outside the apartment were made of metal and exposed aggregate concrete surface.

         2
           Dr. Schmidt explained that the degree of brain injury is measured by the “glasgow coma score.” T he score
ranges from 3 to 15. A normal person will have a score of 15. W hen Ashley arrived at the ICU, “her score was four . .
. . and three is basically no brain function.”



                                                          -4-
       The brain sits in a fluid filled sac called the dura. And
       especially in little children and babies, the ability for
       the brain to move within that sac is far more than
       adults. In fact, in adults it doesn’t move much at all.
       In babies it can move enough that the connections
       between the brain and the dura, the tiny blood vessels
       can get sheared. The other-the nerve fibers, too, and
       the nerve cells can get sheared if there’s a sudden
       impact or acceleration-deceleration force. And then
       that’s also the same explanation for the tiny vessels in
       the back of the eye.            Because of a sudden
       acceleration-deceleration force, these tiny vessels get
       ruptured and cause the bleeding, the hemorrhages in
       the back of the eye.

        Dr. Schmidt advised that “acceleration-deceleration
syndrome” was commonly recognized as “shaken baby syndrome.”
The only other explanations consistent with these injuries would be
from “major trauma like high-speed motor vehicle accidents, falls
from extreme heights,” but not falling down a flight of stairs. The
“shaking” involved in “shaken baby syndrome” would have to be
“extreme, severe, out of control,” “shaking back and forth violently,”
“it requires the head to be snapped back and forth.”

        Dr. Schmidt testified that the appellant had informed him that
Ashley had fallen down the stairs outside their apartment. Dr.
Schmidt was suspicious of this statement because it did not comport
with the degree of injury received by the child and the injuries to the
child were inconsistent with an accidental injury. He explained that
if a two-year-old child fell down thirteen or fourteen raised concrete
and metal stairs, he would expect to find:

       some external evidence of either cuts, abrasions,
       bruises. If there was neurologic injury, then I would
       expect that . . . her head would have had to have hit
       something and there would be either bruising,
       bleeding, cuts, abrasions, something that would show
       that her head struck . . . the step or . . . some evidence
       of external trauma.

       No evidence of external trauma was present on the victim’s
person. Dr. Schmidt opined that “[t]he only way that a child could
have brain damage as severe as [the victim], . . . is the shaking that


                                  -5-
would cause the severe damage to the brain cells.” In support of his
conclusion, he stated that the brain injury was inconsistent with the
mechanism of a fall down the stairs and there was the presence of
retinal hemorrhages which you would definitely not see from a fall
down the stairs. The victim died on September 15, at 11:55 p.m. Her
death was due to both heart and lung failure.

        Dr. Schmidt testified that his concern over the appellant’s
explanation of the victim’s injuries led him to speak with Tammy
Huff’s mother and sister. Both women expressed concern for
Tammy’s safety. When confronted by the evidence from the autopsy
of bruising to the victim’s buttocks and lower back, Dr. Schmidt
refused to change his opinion, concluding that a fall would not have
produced a “pattern” bruise. Instead, Dr. Schmidt concluded that a
pattern bruise to the victim’s buttocks would confirm his conclusion
of abuse.

        Dr. Wendy Gunther, an assistant medical examiner for Shelby
County, performed the autopsy on the victim. Her examination
revealed “some bruising on [the victim’s] left arm and on her
buttocks,” however, she observed “no abrasions, no lacerations.” Dr.
Gunther concluded that the bruising on the buttocks was “consistent
with somebody having struck her repeatedly . . . .” Dr. Gunther
explained that this bruising was difficult to see with the naked eye for
several reasons. “One is that bruises in children with dark brown skin
are often hard to see, and the other reasons were because of
livermo[r]tis. When the dead person is lying face up, the blood
collects in their back, so everything looks kind of dark red.” The
bruise measured an area of 5 X 5 inches. This bruising was
determined to be “fairly fresh. It had not been a long time before she
was injured or died that this happened.” Dr. Gunther admitted that
the bruises could have been caused “by a very unusual fall.” Based
upon the post-mortem examination, Dr. Gunther concluded:

       I think Ashley Brown died of shaken baby syndrome.
       When you take a child . . . and you shake them really,
       really, really hard, you can scramble the neurons. The
       axons break apart and the neurons die . . . . There is
       no other injury which can explain why she went into
       a coma and never came out . . . [w]hy all the neurons
       in her brain either died or were starting to die other
       than shaken baby.



                                  -6-
                   In refuting the appellant’s explanation that the child fell down
           the stairs, Dr. Gunther continued:

                     If this child fell down a flight of concrete steps, she
                     didn’t sustain any injury. There’s no skull fracture,
                     there’s no major bleeding next to the brain, there’s no
                     fractures of her arms or legs or her collarbones or ribs.
                     There’s no bruising to show where she might have hit
                     the steps. The only bruising is that bruise on her arm
                     and the bruising on her buttocks. I don’t understand
                     how she could have fallen down a flight of 16 steps
                     without sustaining any injury . . . . [T]he only thing
                     she can have died of is shaken baby syndrome, for she
                     has no injury to her brain except the injury of shaking.

                   In his defense, the appellant presented the testimony of
           A[rd]ena McCoy. McCoy testified that the appellant is the father of
           four of her five children. She stated that she and the appellant shared
           a home together in Greenville, Mississippi, from May 1994 to May
           1996. They also lived together prior to this period. While the couple
           lived together, the appellant was responsible for the care of the
           children while McCoy was at work. McCoy also testified that she
           never saw the appellant physically reprimand any of the children and
           he cautioned her never to “hit them.” In essence, McCoy was of the
           opinion that the appellant was an excellent father and that he could
           never have harmed a child.

                  Arusher Sturdevant, the appellant’s cousin, testified that, on
           September 13, 1996, he was at his brother’s house between 2:00 and
           3:00 p.m. playing dominoes. The appellant arrived at the residence.
           He had Ashley with him. At first, the appellant tended to Ashley, but
           when a neighbor’s child came over and started playing with Ashley,
           the appellant joined the domino game. Two hours later the appellant
           and Ashley left. Roosevelt Robinson, another of the appellant’s
           cousins, confirmed that the appellant had been at his house playing
           dominoes on September 13.

                  The thirty-two-year-old appellant testified that he has ten or
           eleven children.3 He stated that he met Tammy Huff at Delta State
           University in November 1993. They married in April 1994 and
           divorced soon thereafter. Tammy was pregnant at the time of their


3
    The appellant explained that he was not sure whether one child was actually his.

                                                  -7-
               marriage. The appellant did not see Tammy again until May 1996
               when he saw her at his mother’s house in Greenville, Mississippi.
               This was the first time that the appellant saw his daughter, Ashley.
               During this meeting, the appellant and Tammy decided to “try to give
               it another try” even though the appellant had been living with
               A[rd]ena McCoy. In early August, the appellant, Tammy and Ashley
               moved to Memphis.

                      The appellant recalled that, on the evening of September 12,
               Tammy was disgruntled with him because he was late picking her up
               from work and accused him of being with another woman. An
               argument ensued and Tammy threatened to leave him. Tammy
               telephoned her mother and told her she was coming home. She then
               proceeded to the door when the appellant grabbed her and told her to
               sit down. Tammy sat down and the couple talked. “Everything was
               normal after that.”

                       The following day the couple took Ashley to daycare and then
               each left for their respective jobs. At lunchtime, Tammy delivered
               the car to the appellant since he got off work before she did. The
               appellant got off work at 2:30 p.m. and went home. The appellant
               changed clothes and then picked Ashley up at daycare. He then went
               to his 4:30 appointment with his insurance company. After the
               meeting, the appellant and Ashley went to the home of the appellant’s
               cousin. Shortly after 5:00 p.m., he took Ashley to McDonald’s where
               she got some chicken nuggets. Between 5:30 and 6:00 p.m., he drove
               to Tammy’s place of employment. Tammy came out to the car and
               they discussed repairing their automobile. She stayed in the car for
               about thirty minutes, during which time she played with Ashley and
               fed her something to eat. The appellant then went to his cousin’s
               house where he visited for a while and then returned home.
               Following this testimony, the appellant reiterated his version of the
               circumstances leading to the death of Ashley Denise Brown.

State v. Benjamin Brown, No. W1999-00327-CCA-R3-CD, Shelby County (Tenn. Crim. App. Oct.
24, 2000) (footnotes in original).

                                                 I

       In his first issue, the defendant argues that the trial court erred in admitting testimony of
James Banks, Tammy Huff, and Ardena McCoy about the defendant’s character as a bad husband,
poor son-in-law, and violent person, without first conducting a jury-out hearing to determine the
admissibility of this evidence. The state argues that the defendant objected only to James Banks’


                                                -8-
testimony about the telephone call he received from Ms. Huff on the night before the victim was
injured regarding Ms. Huff’s coming home, that he did not object to the testimony of Huff or
McCoy, and that the defendant’s own testimony covered many of the subjects about which he
complains on appeal. The state argues that admission of the evidence was not error, but that if error,
it was harmless.

A.     Admission of James Banks’ Testimony

         During James Banks’ testimony, the witness was asked about having spoken with Ms. Huff
the night before the victim’s injury and about what Mr. Banks told Ms. Huff. The defense objected,
and the state asserted it intended to introduce evidence that the defendant and Ms. Huff had a
confrontation that evening and of what Banks told Huff when she called him that evening. The state
said it did not intend to offer evidence of any marital issues which were more remote in time and
argued that the evidence should be admitted because it was relevant to the defendant’s state of mind
and the circumstances surrounding the case. The trial court ruled that Mr. Banks would be allowed
to testify about what he told Ms. Huff because it was relevant to the events surrounding the incident
on trial. Thereafter, Mr. Banks testified about telling the victim she could come home but would
need to remain there if she did so. Mr. Brown did not testify about any altercation between the
defendant and Ms. Huff on the night of the telephone call. Mr. Banks did not testify until cross-
examination about his displeasure in learning of the defendant’s other family obligations at the time
of the defendant’s first marriage to Ms. Huff and his reservations about Ms. Huff reuniting with the
defendant.

        The defendant’s challenge is based upon Tennessee Rule of Evidence 404(b), which prohibits
the introduction of evidence of other crimes or acts, except when the evidence of other acts is
relevant to a litigated issue, such as identity, intent, or absence of mistake or accident, and its
probative value is not outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b),
Advisory Comm’n Cmts. The rule states:

               Evidence of other crimes, wrongs, or acts is not admissible to prove
               the character of a person in order to show action in conformity with
               the character trait. It may, however, be admissible for some other
               purpose. The conditions which must be satisfied before allowing
               such evidence are:

               (1) The court upon request must hold a hearing outside the jury’s
               presence;
               (2) The court must determine that a material issue exists other than
               conduct conforming with a character trait and must upon request state
               on the record the material issue, the ruling and the reasons for
               admitting the evidence;
               (3) The court must find proof of the other crime, wrong, or act to be
               clear and convincing; and


                                                 -9-
               (4) The court must exclude the evidence if its probative value is
               outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

       The trial court ruled that Rule 404(b) did not apply because what Mr. Banks said to his
daughter did not amount to a bad act of the defendant. Mr. Brown did not testify about any of the
defendant’s actions that evening. The court did not abuse its discretion in admitting the evidence.

B. Admission of Tammy Huff’s and Ardena McCoy’s Testimony and Cross-Examination
Questioning of McCoy

         The defendant also complains on appeal about portions of the testimony of Tammy Huff and
Ardena McCoy and certain questions McCoy was asked on cross-examination which the defendant
claims implied bad acts on his part. The testimony of Ms. Huff involved the circumstances of her
brief first marriage to the defendant, a serious altercation with the defendant the night before the
victim’s injury, the residual tension the day after the altercation, and Ms. Huff’s unhappiness in her
second marriage to the defendant. The defendant also claims that the state implied he was involved
in a plot with Ardena McCoy to damage his marriage to Ms. Huff. He bases this claim on the state
having obtained Ms. McCoy’s admission on cross-examination that she told Ms. Huff that the
defendant was only marrying her until he could establish himself in Memphis and planned to leave
her and resume his relationship with Ms. McCoy, even though she admitted the defendant had not
told her this. The defendant also complains that the state questioned Ms. McCoy about whether she
had attempted to slash Ms. Huff’s tires, whether she threatened Ms. Huff with a crowbar, and
whether she had called Ms. Huff and said for Ms. Huff to leave the defendant alone because he was
Ms. McCoy’s, all of which Ms. McCoy denied.

         Despite these complaints, the defendant did not object contemporaneously to any of the
testimony or cross-examination of Huff and McCoy. As a prerequisite to challenging on appeal the
admission of evidence, the party opposing admission must have made a contemporaneous objection
at trial. State v. Halake, 102 S.W.3d 661, 669 (Tenn. Crim. App. 2001); State v. Hopper, 659
S.W.2d 530, 536 (Tenn. Crim. App. 1985); see generally Tenn. R. Evid. 103(a)(1); T.R.A.P. 36(a).
If the party fails to object, the evidence becomes admissible notwithstanding contrary provisions of
the Rules of Evidence. State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000). Thus, we will not
consider the defendant’s appellate issue as it relates to the admission of the challenged testimony
Huff and McCoy or the state’s cross-examination questioning of McCoy.

        In so holding, we are not unmindful of the defendant’s argument that all of the referenced
evidence and questioning, viewed in its totality, demonstrated or implied bad conduct on the part of
the defendant. We are also not unmindful of the defendant’s request during Mr. Banks’ testimony
for a Rule 404(b) hearing. However, the court ruled that a Rule 404(b) inquiry was not in order
relative to Mr. Banks’ testimony and limited its ruling to the narrow issue of whether Mr. Banks
could testify about what he told Ms. Huff in the September 12 telephone call. We note that the


                                                -10-
defendant never made a 404(b) objection or requested a 404(b) ruling during the testimony of Ms.
Huff and Ms. McCoy.

                                                   II

        Next, the defendant claims that the trial court erred in allowing Doctor Gunther to testify
about the victim’s cause of death without having established a proper foundation for her opinion.
His specific complaint is that the witness offered expert opinion testimony about the victim’s cause
of death based upon her examination of slides made of the victim’s preserved brain in 1999, despite
the original autopsy having been performed in 1996 and the original slides having been lost in the
interim. The defendant concedes that the defense did not make a contemporaneous objection to the
evidence at trial but argues for relief on the basis of plain error. The state argues that no plain error
has been shown.

        Our supreme court has adopted the factors developed by this court to be considered

                when deciding whether an error constitutes “plain error” in the
                absence of an objection at trial: “(a) the record must clearly establish
                what occurred in the trial court; (b) a clear and unequivocal rule of
                law must have been breached; (c) a substantial right of the accused
                must have been adversely affected; (d) the accused did not waive the
                issue for tactical reasons; and (e) consideration of the error is
                necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). In order for this court to reverse the judgment of a trial court, the
error must be “of such a great magnitude that it probably changed the outcome of the [proceedings],”
and “recognition should be limited to errors that had an unfair prejudicial impact which undermined
the fundamental fairness of the trial.” Adkisson, 899 S.W.2d at 642.

         We hold that although the record clearly establishes what occurred in the trial court and does
not reflect that the defendant waived the issue for tactical reasons, the defendant cannot establish that
a clear and unequivocal rule of law was breached, that a substantial right was adversely affected, or
that consideration of the issue is necessary to do substantial justice. The record reflects that Doctor
Gunther performed the autopsy of the victim in September and October 1996. She acknowledged
on cross-examination that slides and her report of the pathology work done on samples of the
victim’s brain were misplaced and that she took new samples from the victim’s preserved brain,
made new slides, and examined them in 1999 and created an addendum to her 1996 report. She
explained, “And I recall that November of 1996 was about the time the histology laboratory, which
had been kept in the Department of Pathology for decades, was being shut down and downsized, and
all the slides were being moved to Memphis Pathology Laboratory. And I expect they got lost in the
shuffle.” She said she could have testified from her own memory and from the report of the
neuropathologist, but in order to be complete, she took new samples from the victim’s brain, which


                                                  -11-
had not been misplaced and was preserved in formalin, and she repeated the examination procedure.
She said her findings in 1999 were consistent with her 1996 conclusion that the victim died from
shaken baby syndrome. We perceive no breach of a clear and unequivocal rule of law in the
admission of the evidence nor any effect on a substantial right of the defendant. We note, as well,
Doctor Schmidt’s testimony was consistent with that of Doctor Gunther with respect to the cause
of the victim’s injury and resulting death. Even if Doctor Gunther’s testimony had been erroneously
admitted, we would be unable to conclude, based upon the additional testimony of Doctor Schmidt,
that consideration of the issue was necessary to do substantial justice. For these reasons, we hold
that the defendant cannot establish all of the prerequisites to plain error relief.

                                                 III

        The defendant argues that the trial court erred in denying his request to replace a juror with
an alternate once the juror revealed that her roommate knew one of state’s witnesses. The juror
informed the court that she was “just about positive” that her college roommate, who was now a
medical student, had gone “on the rotation with [state’s witness Doctor Schmidt] in the ICU” and
that her college roommate referred to the doctor with whom she had done rounds as “Jeff.” The
juror said she did not know the doctor personally, although she had also gone on hospital rounds and
would be enrolling in medical school herself in a few months. The juror stated that she could be
objective and follow the instructions of the court in evaluating the witness’s testimony. The trial
court ruled that there had not been a sufficient showing for removal of the juror. The state argues
that the trial court did not commit error in determining that the juror could serve impartially.

        Challenges to juror qualifications generally fall into two categories - propter defectum or
propter affectum. State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). General
disqualifications such as alienage, family relationship, or statutory mandate are classified as propter
defectum and must be challenged before the return of a jury verdict. Id. An objection based upon
bias, prejudice, or partiality is classified as propter affectum and may be made after the jury verdict
is returned. Id. “Once a jury is impaneled, jurors may be discharged from further service prior to
deliberations only if found by the trial court to be ‘unable or disqualified to perform their duties.’”
State v. Cleveland, 959 S.W.2d 548, 551 (Tenn. 1997) (quoting Tenn. R. Crim. P. 24(e) (now Tenn.
R. Crim. P. 24(f)(2)(B)); see T.C.A. § 22-2-312. “Where a juror is not legally disqualified or there
is no inherent prejudice, the burden is on the Defendant to show that a juror is in some way biased
or prejudiced.” State v. Caughron, 855 S.W.2d 526, 539 (Tenn. 1993) (citing State v. Taylor, 669
S.W.2d 694, 698-700 (Tenn. Crim. App.1983) and Bowman v. State, 598 S.W.2d 809, 812 (Tenn.
Crim. App.1980)).

         In the present case, the juror stated that she did not know the state’s witness, although she
had heard her college roommate speak of making rounds with a doctor she thought might be Doctor
Schmidt. She stated that she could be impartial and follow the trial court’s instructions. The
defendant has the burden of demonstrating bias or prejudice, and he has not done so. We hold that
the trial court did not err in refusing to remove this juror.



                                                 -12-
                                                    IV

         In his next issue, the defendant argues that the trial court erred in failing to instruct the jury
on the lesser offenses of the felony murder charge. The state argues that the defendant is not entitled
to relief because there were no facts from which an inference of guilt of second degree murder could
be drawn, that the defendant invited error as to the lesser included offense of criminally negligent
homicide by requesting that lesser offense instructions not be given, that there was no proof of
recklessness to support a reckless homicide charge, and that any error in the failure to charge reckless
homicide was harmless.

         Pursuant to the statute in force at the time of the offenses on trial, the trial court was required
“to charge the jury as to all of the law of each offense included in the indictment, without any request
on the part of the defendant to do so.” T.C.A. § 40-18-110(a) (1997). Thus, when the evidence
introduced by either party was susceptible of inferring guilt of a lesser offense, the trial court was
required by this statute to charge such lesser offense. See T.C.A. § 40-18-110(a); Johnson v. State,
531 S.W.2d 558, 559 (Tenn. 1975). An instruction was not required, though, if the record contains
no evidence to support a conviction for the lesser offense. State v. Trusty, 919 S.W.2d 305, 311
(Tenn. 1996), overruled by State v. Dominy, 6 S.W.3d 472, 473 (Tenn. 1999). In this regard, “the
trial court must consider the evidence in the light most favorable to the existence of the lesser
included offense and if the evidence so considered permits an inference of guilt of a lesser offense,
the trial court must give instructions as to that lesser offense.” State v. Brooks, 909 S.W.2d 854, 861
(Tenn. Crim. App. 1996).

        The defendant was charged with and convicted of first degree felony murder. At the time of
the offense, the relevant statute provided:

                (a)    First degree murder is:
                ...
                (2)    A killing of another committed in the perpetration of or
                attempt to perpetrate any . . . aggravated child abuse . . . ;
                ...
                (b)    No culpable mental state is required for conviction under
                subdivision (a)(2) . . . except the intent to commit the enumerated
                offenses or acts . . . [.]

T.C.A. § 39-13-202(a)(2), (b) (Supp. 1996).

        The aggravated child abuse statute provided, in pertinent part:

                (a)   A person is guilty of the offense of aggravated child abuse
                who commits the offense of child abuse as defined in § 39-15-401
                and:
                (1)   The act of abuse results in serious bodily injury to the child[.]


                                                   -13-
T.C.A. § 39-15-402(a)(1) (Supp. 1996). The child abuse statute provided, “Any person who
knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such
a manner as to inflict injury or neglects such a child as to adversely affect the child’s health and
welfare is guilty of a Class A misdemeanor; provided, that if the abused child is six years of age or
less, the penalty is a Class D felony[.]” T.C.A. § 39-15-401(a) (Supp. 1996).

        The record reflects that the trial court informed the parties that it would be instructing the jury
on felony murder without any lesser offenses. Despite the state bringing Trusty to the court’s
attention and stating that the defense proof might call for an instruction on criminally negligent
homicide as a lesser offense, the defendant declined lesser included offense instructions. Without
regard to the defendant’s desire regarding lesser included offense instructions, the trial court had an
independent duty to instruct the jury on all applicable lesser included offenses. T.C.A. §
40-18-110(a); State v. Bolden, 979 S.W.2d 587, 593 (Tenn. 1998). Thus, the defendant’s failure to
request the instructions is not determinative.

       Second degree murder is “a knowing killing of another[.]” T.C.A. § 39-13-210(a)(1). “A
person acts knowingly with respect to a result of the person’s conduct when the person is aware that
the conduct is reasonably certain to cause the result.” T.C.A. § 39-11-302(b); see State v. Ducker,
27 S.W.3d 889, 896 (Tenn. 2000). Considered in the light most favorable to the existence of the
offense, the evidence in the present case would not support a conviction of second degree murder.
There was no evidence the defendant acted knowingly in causing the victim’s death. The
defendant’s theory of the case was that he did nothing to harm the victim and that she was injured
when she fell down a flight of stairs. No instruction was required on the lesser offense of second
degree murder.

        “Reckless homicide is a reckless killing of another.” T.C.A. § 39-13-215.

                ‘Reckless’ refers to a person who acts recklessly with respect to . . .
                the result of the conduct when the person is aware of but consciously
                disregards a substantial and unjustifiable risk that . . . the result will
                occur. The risk must be of such a nature and degree that its disregard
                constitutes a gross deviation from the standard of care that an
                ordinary person would exercise under all the circumstances as viewed
                from the accused person’s standpoint.

T.C.A. § 39-11-302(d). Considered in the light most favorable to the existence of the lesser included
offense, the evidence does not support a conclusion that the defendant was aware of a substantial and
unjustifiable risk of the victim’s death. The defendant testified that he had seen the victim walk up
and down the stairs before. There was no evidence he realized any danger in placing her at the top
of the stairs. The trial court did not err in not instructing the jury on reckless homicide.

      “Criminally negligent conduct that results in death constitutes criminally negligent
homicide.” T.C.A. § 39-13-212.


                                                   -14-
                ‘Criminal negligence’ refers to a person who acts with criminal
                negligence with respect to the . . . result of that conduct when the
                person ought to be aware of a substantial and unjustifiable risk that
                . . . the result will occur. The risk must be of such a nature and
                degree that the failure to perceive it constitutes a gross deviation from
                the standard of care that an ordinary person would exercise under all
                the circumstances as viewed from the accused person’s standpoint.

T.C.A. § 39-11-302(d). Considering the evidence in the light most favorable to the existence of the
lesser offense, the evidence supported an instruction on criminally negligent homicide. The
defendant’s proof would support a conclusion that the defendant should have been aware of a
substantial and unjustifiable risk that leaving the victim unattended at the top of the stairs would
result in her death. Therefore, we must consider whether the failure to give the instruction was
harmless beyond a reasonable doubt. State v. Ely, 48 S.W.3d 720 (Tenn. 2002). In that regard, we
note that although the defendant offered evidence that the victim was injured by falling down the
stairs, his proof did not address the inconsistency of that account with the nature and magnitude of
the victim’s injuries. All of the medical proof refuted the accuracy of the defendant’s account.
Additionally, the jury’s rejection of the defendant’s theory of accidental injury is evident by its
separate verdict of aggravated child abuse. We hold that the failure to give the instruction on
criminally negligent homicide was harmless beyond a reasonable doubt. See id. at 726; State v.
Williams, 977 S.W.2d 101, 105 (Tenn. 1998).

                                                   V

        In his final issue, the defendant claims that the trial court erred in allowing the state to make
inflammatory closing argument which compared the defendant to serial killers and characterized the
defendant as a “practiced liar.” The state argues that the argument was proper rebuttal argument to
the defendant’s closing argument, but even if error, it was harmless.

        The argument in question was part of the state’s rebuttal argument:

                       [PROSECUTOR]: . . . And as far as what [the defendant] or
                how he appeared on the stand, [defense counsel] wanting to make
                him out to be citizen of the year, well, think about Ted Bundy that
                went around the country killing women. Do you think any of them
                would have gotten in the car with him if he looked like a killer?
                Think about John Wayne Ga[c]y in Chicago, do you think any of
                those young boys would have with their parents[’] consent –

                        [DEFENSE COUNSEL]: Objection, Your Honor.

                        [PROSECUTOR]: – let them go into the house.



                                                  -15-
       THE COURT: Counsel approach the bench, please.

       (Bench conference was held.)

        [DEFENSE COUNSEL]: Judge, I think the argument has
been made about these mass murderers and that’s totally
inappropriate, Judge. There’s got to be some semblance or
relationship between the facts and this case.

       [PROSECUTOR]: And, Your Honor, I’m making an example,
you can’t tell a book by its cover. And with all the latitude that’s
been granted [defense counsel], I think I’m perfectly within the realm
of appropriate argument. This is not a case which will tell –

       [DEFENSE COUNSEL]: She can make that statement
without referring to mass murderers and comparing, making the
comparisons between the two here.

       [PROSECUTOR]: This is a murder case. I’m not calling him
a mass murderer.

        THE COURT: I’m going to allow it because of what’s been
said earlier.

       [PROSECUTOR]: Thank you, Your Honor.

       (Bench conference concluded.)

       [PROSECUTOR]: As I was saying, ladies and gentlemen, do
you think any of those mothers would let their children go into the
home of John Wayne Ga[c]y dressed up like a clown if they had
known he was going to rape and murder their children? Of course
not. You can’t tell what somebody is capable of doing by looking at
them. What does a child abuser look like? I wish I had my hand
mirror or my bathroom at home because here’s what one looks like.
Like me. And like you. And that’s a face that’s hidden. That’s a
crime that’s done behind closed doors. It’s not done in front of the
Pyramid. Remember.

        So if you thought that he came across well, that was your
impression. You remember. You don’t judge a book by its cover.
And if he appeared credible, then you remember he’s a practiced liar
because he’s been deceiving people for years and he’s had a long time


                                -16-
               to get good at it. And as Mr. Garrett said several times in his closing
               remarks, I didn’t make that up. That was proof. That was proof for
               Ms. McCoy who was living with the man and had a baby with him,
               several babies with the man, and had no idea that he had another
               girlfriend that was fixing to marry until two days before. That was
               Tammie Brown who had found out he had two children but didn’t
               know he had all the rest. This case isn’t about the man having too
               many children. This was one example that we could show you of
               how he deceived people and how he was willing to lie.

                        And he’s willing to take that stand and lie to you as well.
               Why? Who’s going to stand up and shake a baby like Dr. Gunther
               did in front of anybody? I hope you do have your common sense. Do
               you have it on still? I hope we haven’t stripped you of that in the
               course of these proceedings because that’s what you need to evaluate
               this case. That’s what you need to sift through some of the statements
               that have been made to you this morning.

        The Tennessee Supreme Court has recognized that “argument of counsel is a valuable
privilege that should not be unduly restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).
Attorneys have great leeway in arguing before a jury, and the trial court’s broad discretion in
controlling their arguments will be reversed only upon an abuse of discretion. Terry v. State, 46
S.W.3d 147, 156 (Tenn. 2001). However, closing argument must be “temperate, must be predicated
on evidence introduced during the trial of the case and must be pertinent to the issues being tried.”
Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). Prosecutorial misconduct does not constitute
reversible error unless the outcome was affected to the defendant’s prejudice. State v. Bane, 57
S.W.3d 411, 425 (Tenn. 2001). In Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976),
this court set out the following considerations for determining whether the state’s conduct could have
improperly prejudiced the defendant and affected the verdict:

               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.



                                                -17-
See also State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in determining
if the misconduct resulted in reversible error).

        Initially, we note that the defendant did not make a contemporaneous objection to the
prosecutor’s characterization of him as a “practiced liar.” The failure to object contemporaneously
constitutes a waiver. T.R.A.P. 36(a); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992)
(failure to object to prosecutor’s alleged misconduct during closing argument waives any later
complaint). Thus, we will limit our consideration to the references to serial killers. In that regard,
we note that the context in which the assistant district attorney mentioned Ted Bundy and John
Wayne Gacy was in rebutting the defendant’s argument which characterized him as a caring father
and husband who had been “set up” in a rush to judgment by the authorities and Tammy Huff’s
family. The state responded by demonstrating that the defendant was a deceitful person as shown
by the testimony and by arguing that his appearance and demeanor, like that of Bundy and Gacy,
could be deceiving. We believe the reference to notorious serial killers was improper because of its
inflammatory nature. See State v. Lonnie Turner, No. M1999-01127-CCA-R3-CD, Rutherford
County (Tenn. Crim. App. June 5, 2001) (characterizing prosecutor’s likening defendant to notorious
serial killers as “clearly improper”), app. denied (Tenn. Dec. 10, 2001). The trial court should have
sustained the defense objection and instructed the jury to disregard it. However, in the context of
the entire argument, the overwhelming proof of the defendant’s guilt, and the lack of other
significant errors in the record, we cannot say that this argument affected the verdict to the
defendant’s prejudice.

        In consideration of the foregoing and the record as a whole, the judgments of the trial court
are affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




                                                -18-
