        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT NASHVILLE                        FILED
                                  APRIL 1995 SESSION
                                                                              May 7, 1997

                                                                         Cecil W. Crowson
STATE OF TENNESSEE,                        )                            Appellate Court Clerk
                                           )
        Appellee,                          )   No. 01C01-9412-CC-00406
                                           )
                                           )   Maury County
v.                                         )
                                           )   Hon. Jim T. Hamilton, Judge
                                           )
RANDY ANDERSON,                            )   (Aggravated Burglary and Theft over $1,000)
                                           )
        Appellant.                         )


                              DISSENTING OPINION


        I respectfully disagree with my colleagues in this case. I do not

believe that the prosecutor's remarks concerning the appellant's intention to

plead guilty prejudiced him or deprived him of a fair trial. As pointed out by the

majority, Judge v. State1 provides five factors to be considered in assessing the

prejudicial effect of improper argument. The five factors are:

        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.


        Four of these five requirements, in the context of this case, tend to

establish that the improper conduct did not affect the verdict. The trial court did

not give a curative instruction regarding the improper comments. 2 However, the

record reveals that the intent of the prosecutor was not malicious. The

prosecutor was only articulating a conclusion that he wanted the jury to reach



        1
                 539 S.W .2d 340, 344-45 (T enn. Crim. Ap p. 1976).

        2
                 In this instance, a curative instruction by the judge would have only served to bring
more attention an d focus to the imp roper comm ent.
regarding the appellant. Furthermore, the record does not indicate that the

appellant's trial was tainted with errors. I see no compounding or cumulation of

prejudice when this improper comment is considered in light of the entire record.



      I find that the evidence proffered against the appellant was strong. To

detract nothing from a competent prosecutor, I am very skeptical that his

improper comments removed all traces of reasonable doubt from the minds of

the jury. Therefore, I would affirm the convictions.



                                                __________________________
                                                PAUL G. SUMMERS, Judge
