        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 January 6, 2015 Session

               STATE OF TENNESSEE v. JERALD JEFFERSON

                   Appeal from the Criminal Court for Shelby County
                       No. 11-05625    Lee V. Coffee, Judge


                No. W2014-00784-CCA-R3-CD - Filed June 25, 2015


The defendant, Jerald Jefferson, was convicted of aggravated rape and sentenced to
confinement for twenty-five years. On appeal, he argues that this court should utilize a
plain error review to consider his claims that the trial court erred in its jury instructions
regarding eyewitness testimony and admission by silence, that the State engaged in
prosecutorial misconduct in its closing argument, and that the aggregate effect of trial
errors entitles him to a new trial. Following our review, we affirm the judgment of the
trial court.
 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and ROGER A. PAGE, JJ., joined.

Neil Umsted (on appeal) and Charles Waldman (at trial), Memphis, Tennessee, for the
appellant, Jerald Jefferson.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Terre Fratesi, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       The victim in this matter reported to police officers in 2002 that she had been
raped. At the time, she was a sixteen-year-old high school student. A DNA sample was
taken from her, but the matter was dormant until 2010, when a DNA sample taken from
the defendant was determined to match the sample taken from the victim in 2002. He
was indicted for aggravated rape in 2011 and convicted of this offense. After the motion
for new trial had been overruled, substitute appellate counsel was appointed. He filed a
timely notice of appeal. Since the issues presented by this appeal were neither objected
to at trial nor raised in the motion for new trial, we will determine whether we may utilize
a plain error review in our consideration.

       The State’s first witness was Memphis Police Officer Raymond Anthony Owens,
who testified that, on October 4, 2002, he received a call from the dispatcher to go to a
business address on Elvis Presley Boulevard. When he arrived, an EMS technician was
completing an examination of the victim. Officer Owens described the victim as having
“clothing [that] was in disarray. Her hair was kind of messed up. She was upset,
crying.” She told him what had happened:

       She said she was in front of Trezevant High School. Somebody came up
       behind her, put something over her head, put her inside of a vehicle. She
       thinks there w[ere] about three attackers. And while they drove around,
       they sexually assaulted her. They held her down and sexually assaulted
       her.

Officer Owens then transferred the victim to the rape crisis center, where she was
examined and a DNA sample was taken.

        The victim’s mother next testified, saying that the victim was the middle of three
daughters. In 2002, the victim attended Trezevant High School, where she was on the
track team and played volleyball, as well as the clarinet and the drum for the school band.
She was a “good child” and “as far as being a liar or giving . . . a lot of trouble, she didn’t
do that.” On October 4, 2002, the victim was to call from school when she was ready to
be picked up and brought home. Around 3:00 p.m. that day, the witness received a
telephone call from McClain Motors on Elvis Presley Boulevard, telling her that the
victim “was there and she had been hurt.” The victim had called her stepfather, and he
and her mother went to McClain Motors. When they arrived, the victim was “hysterical.”
Her mother further described her condition:

       I don’t think she had on a shirt. I know she didn’t have on shoes. Her hair
       was pulled – like it had been in a ponytail, so pulled – she was in bad
       shape. She was in bad shape.

              ....

               She wasn’t physically . . . beaten, no. Crying. Hysterical, really. It
       was . . . bad. If you seen your child like this, you would understand. It was
       bad.

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       The victim testified that, at the time of trial, eleven years after the rape, she was
twenty-seven years old, working as a security officer, and living with her parents. She
had graduated both from high school and Southwest Tennessee Community College. She
said that, on October 4, 2002, she had been at school and was leaving to return home, as
her mother had instructed, when she heard a person she knew as “Antonio” call her name.
She described what happened next:

              So I walked over, and then the next thing you know, there was a bag
       being put on my head, and people were pulling me, and I was hearing
       yelling, and I was yelling, and I was drug into the car.

              We rolled around for a long time, you know. If your head is
       covered, it can only be a long time, you know. So we drove around and
       drove around and drove around. And I heard whispering. And we pulled
       over somewhere, and I can remember them snatching my clothes off. I can
       remember people holding me down. I can remember me screaming, “Stop
       it. No. What are you doing? Let me go.” I’m blind, so I can’t see without
       my glasses. I can remember them taking everything that I had.

              When they finally finished, they never said anything to me. And
       they let me out and . . . everything in me was gone. And I was scared. And
       I called my dad. And he told me to call Mom. And I called Mom. And
       then everybody came.

       The victim said that there were three men in the car, including Antonio.
Otherwise, she was unable to describe them. She remembered the men grabbing her arms
and legs, holding a bag on her head, and “being in the back seat on [her] back.” The car
stopped, and she was raped. The car door then opened, and she was pushed out. She
walked to McClain Motors, where she was helped and her mother and father were called,
as well as an ambulance. Her parents arrived, and she later went to the rape crisis center,
where she was examined.

       Kevin McClain testified that he was the owner of McClain Motors and, when the
victim walked in, she was not wearing shoes, looked “dazed and confused,” and said that
she had been raped. He telephoned the police department but did not ask the victim what
had happened.

       Judy Pinson testified that she was a nurse practitioner at the Memphis Rape Crisis
Center. She said the victim had been examined at the Center in 2002, and a sub-acute
abrasion about one centimeter in length was found on her vulva. Pinson believed it to be
a penetrating injury. Pinson took DNA samples from the victim.
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       Lieutenant Stephen Cody Wilkerson testified that he was employed by the
Memphis Police Department and was in charge of the Sex Crimes Cold Case Unit. On
January 3, 2011, he was assigned to work on the victim’s case, and there had been a
match made with the DNA from the victim’s rape kit and a Tennessee Bureau of
Investigation (“TBI”) profile of DNA taken from the defendant. The defendant was
contacted and voluntarily came to police headquarters. He was not arrested but was
advised of his Miranda rights before being questioned. The defendant consented to
having another DNA sample taken from him. The defendant responded to questions
asked of him, and Lieutenant Wilkerson described the defendant’s actions when told of
the DNA evidence:

       [U]p to that point, he was a little nervous, but he was engaged in
       conversation. He would look at me, he’d make eye contact with me, he
       would answer questions, . . . he asked a couple of questions.

             Once . . . I told him that we had recovered DNA evidence from the
       rape kit that was collected after [the victim] was assaulted and taken to
       Rape Crisis, I told him that we recovered his DNA from inside her vagina.

              At that point, he just stopped talking. He just looked down at the
       floor, wouldn’t say a word, wouldn’t move. We sat there for a long time.
       We were in the interview room for about an hour and twenty minutes.
       Probably the last twenty minutes was just sitting there with him staring at
       the floor.

       Lieutenant Wilkerson continued that his reason in asking for a second DNA
sample from the defendant was for a confirmatory test. Since the results from the second
test were not yet available, the defendant was allowed to leave following his being
questioned.

       Deanna Lankford testified that she was employed as Associate Laboratory
Director for Cellmark Forensics, a private forensic DNA testing laboratory. She said that
she had testified as a DNA expert witness “[c]lose to” fifty times in criminal, federal, and
military courts, in “many different states.” She said that she had received slides prepared
with samples taken from the victim’s sexual assault kit and that the presence of semen
was detected. As a result of the testing, a DNA profile was created and returned to the
TBI in 2005.

       Lawrence James testified that he was employed by the TBI as a special agent and
forensic scientist supervisor. He said that he had provided expert testimony in courts
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regarding DNA approximately seventy-five times. The DNA profile from Cellmark had
been uploaded into CODIS in 2006, and, in November 2010, he was told that the profile
matched that of the defendant, Jerald Jefferson. This result was reported to Shelby
County authorities, and the TBI asked that, for confirmation purposes, a second DNA
sample be taken from the defendant. Special Agent James then received and tested this
second sample and concluded that the DNA from the defendant’s second swab matched
that found on the vaginal swab from the victim’s rape kit. He said that among African-
Americans, the race of the defendant, he would expect to see this profile once in 40
quadrillion, 870 trillion. The State then rested its case.

       Following this testimony, the defendant rested without presenting any evidence.

                                       ANALYSIS

        On appeal, the defendant acknowledges that since the issues presented in this
appeal were neither objected to at trial nor raised in the motion for new trial, we must
utilize a plain error review in considering them. See Tenn. R. App. P. 3(e) (providing for
waiver of issues not specifically stated in a motion for new trial); State v. Hatcher, 310
S.W.3d 788, 808 (Tenn. 2010) (stating that a defendant waives those issues not raised in
a motion for new trial and those issues are subject to plain error review). In order for us
to find plain error: (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)). The presence of all five factors must
be established by the record before we will recognize the existence of plain error, and
complete consideration of all the factors is not necessary when it is clear from the record
that at least one factor cannot be established. Id. at 283.

      Applying that standard, we will review the issues raised on appeal by the
defendant.

      I. Trial Court Erred in Charging the Jury Regarding Witness Testimony

        The defendant argues that the trial court erred in charging the jury that the
testimony of one witness was sufficient to support a conviction. The court’s complete
instructions regarding identification testimony is as follows, with the assailed testimony
in italics:



                                             5
              The Court charges you that the identity of the defendant must be
       proven in the case on the part of the State to your satisfaction beyond a
       reasonable doubt. In other words, the burden of proof is on the State to
       show that the defendant now on trial before you is the identical person who
       committed the alleged crime with which he is charged. In considering the
       identity of a person, the Jury may take into consideration all the facts and
       circumstances in the case.

               Again, the State has the burden of proving every element of the
       crime charged, and this burden specifically includes the identity of the
       defendant as the person who committed the crimes for which he is on trial.
       If after considering the identification testimony in light of all the proof you
       have a reasonable doubt that the defendant is the person who committed the
       crimes, you must find the defendant not guilty.

               The reliability of an in-court identification depends on the totality of
       the circumstances, including the opportunity of the witness to view the
       offender at the time of the crime, the witness’s degree of attention, the
       accuracy of the prior description of the offender, the level of certainty of
       the witness at the confrontation and the length of time between the crime
       and the confrontation. The credible testimony of one identification witness
       is sufficient to support a conviction if the witness viewed the accused under
       such circumstances as would permit a positive identification to be made.
       The Court charges you that the credible testimony of one victim or one
       witness, standing alone, is sufficient to support a conviction.

               The Court further charges you that if you are satisfied from the
       whole proof in the case, beyond a reasonable doubt, that the defendant
       Jerald Jefferson committed the crimes charged against him, and you are
       satisfied beyond a reasonable doubt that he has been identified as the
       person who committed the crimes charged, then it would be your duty to
       convict him. On the other hand, if you are not satisfied with the identity
       from the proof, or you have a reasonable doubt as to whether he has been
       identified from the whole body of the proof in the case, then you must
       return a verdict of not guilty.

        In considering the defendant’s claim in this regard, we first note that, at the outset
of the trial, in response to the court’s asking if the defense was going to be consent by the
victim, defense counsel responded, “Correct,” adding that he expected testimony from an
expert witness presented by the State that “there was actually semen found in [the victim]
that appears to be or could be from partners other than [the defendant].”       As to this
                                              6
instruction, the defendant argues that the now objected-to language “misdescribed the
quantum of proof necessary to satisfy proof beyond a reasonable doubt.”

       As previously set out, the victim testified that she was blindfolded during the rape
and, in response to a question asked during cross-examination, said she did not forget
faces and that the defendant’s face was one she had “never seen before.” Thus, the
State’s proof against the defendant did not include eyewitness identification testimony by
the victim or anyone else. Further, we note that the objected-to language is in the identity
section of the instructions and not that as to reasonable doubt.

        Two previous opinions of this court are relevant to the assailed special jury
instruction. In State v. David Michael Chubb, No. M2005-01214-CCA-R3-CD, 2007
WL 258429, at *16 (Tenn. Crim. App. Jan. 29, 2007), the same instruction was given to
the jury, over the defendant’s objection. Observing that the case “essentially presented to
the jury a question of credibility between the victim and the appellant . . . the jury
instruction effectively informed the jury that they need look no further than the victim’s
testimony to convict and thus implied that the jury need not consider all other proof.” Id.
In State v. David Richardson, No. W2013-01763-CCA-R3-CD, 2014 WL 6491066, at
*20 (Tenn. Crim. App. Nov. 20, 2014), this court concluded that the giving of the
instruction was error which was “harmless beyond a reasonable doubt because the proof
identifying [the defendant] as the perpetrator did not depend on a single eyewitness’s
testimony.” The court explained that “[t]here were no eyewitnesses who saw [the
defendant] committing the offenses in this case”; and, viewing the charge as a whole, it
was “clear that the challenged special instruction referred to eyewitness testimony,
despite the fact that there were no eyewitnesses identifying [the defendant] as the
shooter.” Id. Accordingly, the defendant was not entitled to plain error relief because he
failed to show that a substantial right had been adversely affected and that consideration
of the error was necessary to do substantial justice.

       Applying that same reasoning to the present appeal, we, likewise, conclude that
the defendant is not entitled to plain error review as to the erroneous jury instruction.
Neither the victim nor any other witness provided eyewitness testimony as to the
defendant’s sexually assaulting the victim. Instead, he was arrested, charged, and
convicted of the offense based upon cold case review of DNA recovered from the victim.
Therefore, neither a substantial right of the defendant was violated, nor is consideration
of the matter necessary to do substantial justice. Thus, we decline to utilize a plain error
review as to this issue.

       This assignment is without merit.



                                             7
                 II. State’s Reference During Closing Argument to
                Defendant’s Silence After Being Told Of DNA Results

       The specific trial testimony which was the basis for the State’s allegedly improper
argument was given by Lieutenant Wilkerson. As he was recounting his questioning of
the defendant, who had been denying any knowledge of the incident, Lieutenant
Wilkerson described the defendant’s response upon being told that his DNA matched the
sample taken from the victim, saying that the defendant then “wouldn’t say a word,
wouldn’t move,” but was sitting and staring at the floor for twenty minutes. That
testimony was recounted, in turn, during the State’s closing argument:

             And after being advised of his Miranda rights, what the Defendant
      said was, “I don’t know her. I don’t know [the victim]. I don’t know
      Antonio Starks. I’ve never been to Trezevant High School. I’ve never had
      sex with someone who had a hood or a pillow or a cloth item over her head.
      I never had sex with someone while other people watched. No, no, no.

             And then, being the seasoned detective that he is and having already
      gotten this DNA swab, Lieutenant Wilkerson dropped the bomb and said,
      “Well, we’ve got your DNA in her rape kit. And this swab you just gave
      me is going to prove it.” And that’s when the head dropped to the floor and
      the twenty minutes of silence began. What do you think he was thinking
      during those twenty minutes? . . . I suggest to you that maybe he was
      thinking, other than an initial expletive in his mind, he was caught. Maybe
      he was thinking about October 4th of 2002 and a split second moment in
      time when he made a decision to commit an act of violence against another
      human being. That was when he chose was October 4th, 2002. Maybe he
      was thinking about that day.

       The failure to object to closing argument at trial waives our consideration of this
issue on appeal. See Tenn. R. App. P. 36(a); State v. Stephenson, 195 S.W.3d 574, 601
(Tenn. 2006); State v. Thomas, 158 S.W.3d 361, 413 (Tenn. 2005); State v. Little, 854
S.W.2d 643, 651 (Tenn. Crim. App. 1992) (holding that the defendant’s failure to object
to the State’s alleged misconduct during closing argument waives that issue). Thus, the
defendant is not entitled to relief on appeal unless the remarks constitute “plain error.”
See Tenn. R. App. P. 36(b); State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000).

       In response to a question from the State, as to whether the defendant was “charged
or arrested” the day he met with Lieutenant Wilkerson at the police department,
Lieutenant Wilkerson earlier had responded that, following their conversation, he
“opened up the door and let [the defendant] walk right out.” However, on appeal, the
                                            8
defendant, in pointing to prosecutorial misconduct, points to cases reviewing comments
about post-arrest silence. Since the defendant made no claim, either by pretrial motion or
during the trial, that he had believed he was in custody at the time of his statement and
then silence, we have no basis to review this matter as the State’s commenting on post-
arrest silence. Accordingly, it is not necessary that we review this issue because a
substantial right of the defendant was not affected.

        As to the defendant’s arguing that the State improperly recounted during final
argument his lengthy silence when told of the DNA results, we already have reviewed the
fact that testimony regarding this matter was not objected to during the testimony of
Lieutenant Wilkerson. Accordingly, what we are left with is the State’s recapping trial
testimony, which included the facts that the defendant had been advised of his Miranda
rights, had voluntarily made a statement to Lieutenant Wilkerson, was not arrested, and
left the police station following the statement. Thus, the cases relied upon by the
defendant regarding the post-arrest silence of a defendant are not relevant. Accordingly,
we conclude that this issue is without merit.

        Further, the defendant argues that the State, during the rebuttal argument, made
improper references to DNA evidence in general and to another case involving such
proof. More specifically, he asserts the State argued DNA evidence was particularly
valued by jurors and, in detailing a previous rape case, how, following that trial, a news
reporter had asked if there had been a prior relationship between the victim and the
defendant. The State recounted this previous case that, in rape prosecutions with DNA
evidence, it was not uncommon for defendants to question the character of the victim
rather than challenge the scientific results.

       Since counsel who represented the defendant during the trial did not object to
these two lines of argument, we determine first whether they constitute plain error. We
conclude that they do not. Since the arguments appear to be a response to the defendant’s
comments regarding the victim’s character, no clear and unequivocal rule of law was
breached. Likewise, given the fact that the DNA sample from the victim matched that
from the defendant, we cannot conclude that our considering them is necessary to do
substantial justice. Accordingly, this issue is without merit.

            III. Jury Instructions Regarding Admissions Against Interest

       The defendant complains that the trial court instructed the jury regarding
admissions against interest although the record was “devoid of any proof that supported
this charge.”



                                            9
       In Ledune v. State, 589 S.W.2d 936, 939 (Tenn. Crim. App. 1979), the court
explained the admission by silence doctrine:

      [W]hen a statement is made in the presence and hearing of one accused of
      an offense and the statement tends to incriminate him, or is of an
      incriminating character, and such statement is not denied or in any way
      objected to by him, both the statement and the fact of his failure to deny it
      or make any response to it, is admissible against him as evidence of his
      acquiescence in its truth.

       In this matter, the defendant denied having sexual relations with the victim, but
after being told of the DNA results, he became silent for a period of minutes, looking at
the floor. Certainly, a reasonable jury could have concluded that his failing to respond or
explain was incriminating. Further, we note that trial counsel had not objected to the
testimony regarding the defendant’s reaction to the DNA information, nor did counsel
object when given the earlier opportunity to review the proposed jury instructions before
they were read to the jury. Accordingly, we conclude that this objection is waived, and
even if that were not the case, it is harmless error.

                                 IV. Cumulative Error

        The defendant asserts on appeal that, because of cumulative error occurring during
the trial, he was deprived of a fair trial. As set out previously, we have considered each
of these claims of trial errors and concluded that none may be reviewed as plain errors.
Accordingly, since they may not be considered individually, they may not be considered
as a group.

                                    CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the judgment of the
trial court.

                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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