    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                     AT KNOXVILLE
                             April 27, 2016 Session

       STATE OF TENNESSEE v. LANCE ELLIOTT FALCON
                Appeal from the Criminal Court for Knox County
                      No. 96800    G. Scott Green, Judge
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              No. E2015-00935-CCA-R3-CD – Filed August 17, 2016
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ROBERT L. HOLLOWAY, JR., J., concurring.

       I concur with the majority’s opinion affirming the judgments of the trial
court. I write separately to express my opinion that the question posed by the trial
judge was essentially a comment on credibility and violated an unequivocal rule of
law. “[J]udges in Tennessee are prohibited by our constitution from commenting
upon the credibility of witnesses or upon the evidence in the case.” State v.
Suttles, 767 S.W.2d 403, 406 (Tenn. 1989); see also Tenn. Const. Art. VI, § 9.

        Suttles, much like this case, involved a sexual offense in which the primary
issue was the “credibility between the child victim and the [] defendant.” 767
S.W.2d at 404. Our supreme court characterized the issue of credibility as a
“classic one[] for resolution by a jury.” Id. In Suttles, the court determined the
trial judge’s explanation to the jury concerning why he talked personally to the
victim in chambers, why the victim was reluctant to testify, and why he cleared the
courtroom of spectators before the victim testified “could have been taken by the
jury as an endorsement of [the victim’s] credibility.” Id. at 407. The court
characterized Suttles as “an extremely close case” in which “the trial judge must
be very circumspect in making statements to the jury which might in any way
reflect upon the credibility of a crucial witness.” Id. at 406. The court reversed
the conviction and remanded the case for a new trial.

       The question posed by the trial judge in this case was, in my opinion, more
egregious than the explanation to the jury given by the trial judge in Suttles.
However, in this case, the State’s proof included two highly-incriminating
recorded telephone conversations between the Defendant and the victim, which
were admitted as evidence and played before the jury. “The line between harmless
and prejudicial error is in direct proportion to the degree of the margin by which
the proof exceeds the standard required to convict beyond a reasonable doubt.” Id.
at 404 (quoting State v. Carter, 714 S.W.2d 241, 248 (Tenn. 1986)) (internal
quotation marks omitted).

       I would characterize the comments by the trial judge in this case as non-
structural constitutional error which does not require automatic reversal but is
subject to a harmless error analysis wherein the State bears the burden of proving
that the error is harmless beyond a reasonable doubt. State v. Rodriguez, 254
S.W.3d 361, 371 (Tenn. 2008). The test used to determine whether a non-
structural constitutional error is harmless is “whether it appears beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.” Id. (quoting Neder v. United States, 527 U.S. 1, 15 (1999); State v.
Allen, 69 S.W.3d 181, 190 (Tenn. 2002)) (internal quotation marks omitted). As
noted above, the State introduced two highly incriminating phone conversations
between the Defendant and the victim. Such evidence leads me to conclude that
the judge’s improper comments did not contribute to the jury’s verdict and were
harmless beyond a reasonable doubt.

        Consequently, the Defendant cannot show that a substantial right was
adversely affected or that reversal of the judgments is “necessary to do substantial
justice.” State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994).
Therefore, I concur in the majority’s conclusion that the Defendant is not entitled
to plain error relief.

      I am authorized to state that Judge Thomas joins in this concurring opinion.



                                          _________________________________
                                          ROBERT L. HOLLOWAY, JR., JUDGE
