         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                September 7, 2011 Session

                  STATE OF TENNESSEE v. NOURA JACKSON

                  Appeal from the Criminal Court for Shelby County
                          No. 05-06767 Chris Craft, Judge


              No. W2009-01709-CCA-R3-CD - Filed December 10, 2012


JEFFREY S. BIVINS, J., concurring.

       I concur in the results reached in the lead opinion by Judge Glenn. Indeed, I join in
the lead opinion on all but one issue. I write separately to address the issue of prosecutorial
misconduct during closing argument. As the lead opinion points out, the opening sentence
of the State’s rebuttal argument was as follows: “Just tell us where you were. That’s all
we’re asking, Noura.” The defense contends that the remark constitutes an improper
comment on the defendant’s choice not to testify at trial. The State claims that the remark
was merely a reference to the testimony during trial given by Cindy Eidson, the defendant’s
aunt.

        During its analysis of the issue, the lead opinion concludes that “[t]he upshot of all
this is that we cannot conclude that the prosecutor’s argument, though certainly dramatic,
was improper.” I cannot agree. I am compelled to conclude that the statement, indeed, did
constitute an improper comment on the defendant’s choice not to testify at trial.

        Although I do conclude that the remark was improper, to be entitled to a new trial, the
improper remark must have affected the verdict of the jury. State v. Middlebrooks, 995
S.W.2d 550, 559 (Tenn. 1999). In making this determination, we must consider: 1) the
conduct involved in light of the facts and circumstances of this particular case; 2) the curative
measures, if any, undertaken by the court and the prosecution; 3) the intent of the prosecutor
in making the improper remark; 4) the cumulative effect of the improper remark and any
other errors in the record; and 5) the relative strength or weakness of the case as a whole.
Id. at 560. See also Judge v. State, 539 S.W. 2d 340, 344 (Tenn. Crim. App. 1976).

       In this case, the State claims that the remark simply recalled testimony by the
defendant’s aunt at the trial. A review of the aunt’s testimony does reveal that she did ask
the defendant about her whereabouts on the evening when the victim was killed. However,
a close review of the aunt’s testimony demonstrates that the State did not quote the
testimony. Indeed, the statement by the State materially differed from the aunt’s testimony.
Moreover, as the lead opinion points out, the remark by the State included the term “us”
which clearly could lead a juror to conclude that the remark was a comment on the fact that
the defendant had not answered that question in testimony at the trial. In fact, this likely
would be the most logical conclusion of a layperson to such a statement. Finally, although
the location from where the remark was made and in which direction the prosecutor was
looking when the remark was made is impossible to tell from the transcript,1 at oral argument
the State essentially conceded that the prosecutor moved toward the defendant to some extent
and was looking directly at the defendant when the remark was made. Thus, in sum, this
factor is, at the very least, problematic.

        The next factor to consider is any curative measures taken by the court and/or the
prosecution. In this case, fortunately for the State, the trial court immediately and
meticulously gave a very detailed and thorough curative and limiting instruction to the jury.
The trial court even polled the jurors to make sure that each of them understood that he or
she could not hold it against the defendant that she did not testify at trial based upon the
comment by the State. To the State’s credit, the State did make efforts to tie the improper
comment back to the aunt’s testimony when the argument resumed after the trial court’s
instructions. Primarily based upon the trial court’s excellent work, this factor countenances
rather strongly against a finding that the improper remark affected the jury’s verdict.

        We now turn to the intent of the prosecutor in making the improper remark. The fact
that the prosecutor did not preface the comment with a reference to the aunt’s testimony,
particularly in light of the fact that the prosecutor chose not to quote the testimony of the
aunt, is troubling. Moreover, the use of the present tense first person plural much more likely
leaves the impression that it is a question from those present in the courtroom. To compound
matters further, we contrast this approach with the State’s exact quotation in the start of the
opening statement when the State quoted verbatim the defendant’s profane demand to her
mother for money before her mother’s death.

        With regard to the cumulative effect of this improper remark and any additional errors,
one immediately must note the manner in which the trial court conducted this long and
complicated trial. Despite a myriad of difficult evidentiary and other issues, the record
before this court is of a relatively flawless trial. Based upon the lead opinion’s conclusions,
all of which I join with the exception of this issue, the only other error for consideration here
is the failure of the State to timely produce the third statement of Andrew Hammack. Again,
as the lead opinion points out, although the statement should have been produced earlier, the

        1
          As Judge Glenn points out in the lead opinion, the record on appeal contains a DVD provided
by the defendant that the defendant represents would show the opening portion of the rebuttal argument.
As noted, we cannot and have not considered the DVD in this case.
defendant suffered little, if any, prejudice as a result. Therefore, there is very little to
consider on this factor.

       The final factor for consideration is the relative strength or weakness of the case as
a whole. This case clearly is primarily a circumstantial case. The overall proof, however,
although not overwhelming, is relatively strong.

        Having considered all of the requisite factors, the final step is to review the totality
of the findings and the weight to be given to each factor to determine whether the improper
statement actually affected the verdict of the jury. Although this case presents a relatively
close question, I conclude that the full analysis of these factors demonstrates that the
improper statement did not affect the verdict of the jury. Accordingly, I, too, affirm the
judgment of the trial court in this action.

       Judge Woodall has authorized me to state that he joins in this opinion.



                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE
