          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               September 28, 2010 Session

          STATE OF TENNESSEE v. JEREME DANNUEL LITTLE

               Direct Appeal from the Circuit Court for Hamilton County
                        No. 253374     Rebecca J. Stern, Judge


                  No. E2009-01796-CCA-R3-CD - Filed January 3, 2012


      Based on the cumulative effect of the errors committed in this case, I would reverse
the Defendant-Appellant’s convictions and remand for a new trial. Accordingly, for the
reasons outlined below, I respectfully dissent.

         In State v. Hester, the Tennessee Supreme Court defined the doctrine of cumulative
error:

                The cumulative error doctrine is a judicial recognition that there may
         be multiple errors committed in trial proceedings, each of which in isolation
         constitutes mere harmless error, but which when aggregated, have a
         cumulative effect on the proceedings so great as to require reversal in order to
         preserve a defendant’s right to a fair trial.

State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010) (citations omitted). The Hester court also
found that United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993), provided helpful insight
regarding the cumulative error doctrine. Hester, 324 S.W.3d at 77. In Sepulveda, the United
States Court of Appeals for the First Circuit provided guidance for appellate courts when
considering whether the aggregated errors at trial deprived a defendant of a fair trial:

                Of necessity, claims under the cumulative error doctrine are sui generis.
         A reviewing tribunal must consider each such claim against the background
         of the case as a whole, paying particular weight to factors such as the nature
         and number of the errors committed; their interrelationship, if any, and
         combined effect; how the [trial] court dealt with the errors as they arose
         (including the efficacy–or lack of efficacy–of any remedial efforts); and the
         strength of the [State’s] case. See, e.g., [U.S. v.] Mejia-Lozano, 829 F.2d
         [268,] 274 n.4 [(1st Cir. 1987)]. The run of the trial may also be important; a
         handful of miscues, in combination, may often pack a greater punch in a short
       trial than in a much longer trial.

Sepulveda, 15 F.3d at 1196.

        As an initial matter, the paucity of proof in this case must be addressed. It is
significant that the aggravated robbery, which precipitated the especially aggravated
kidnapping charges, lay dormant for nearly seven years because neither victim could identify
the perpetrators. Only after law enforcement contacted Grayson, who was incarcerated on
unrelated aggravated robberies and admittedly anticipating a sentence reduction in exchange
for his cooperation, did Grayson advise law enforcement that he and the Defendant-Appellant
had committed the 1998 aggravated robbery. At this point, Grayson further advised law
enforcement that the Defendant-Appellant kidnapped and tortured Grayson because Grayson
“ran out” on the Defendant-Appellant during the aggravated robbery.

        For reasons not borne out by the record, law enforcement then contacted Kelvin
Ellison, the only other purported witness to the alleged kidnapping. Ellison was likewise
incarcerated at the time he was contacted by law enforcement and anticipated a third sentence
reduction in exchange for his cooperation. At the beginning of their conversation, which was
recorded, law enforcement told Ellison that they were investigating a 1998 robbery, that the
Defendant-Appellant had Grayson tied to a chair, and that they needed someone “to
corroborate what this person told [them] happened to him.” Prior to being informed about
the forced consumption of dog feces and in response to an agent telling Ellison where
Grayson had been tied up, Ellison told the authorities, “Yeah. And they were beating him,
had the dog (indiscernible) stuff.” Although the above statement was disputed at trial, later
in the taped conversation, a detective stated, “O-kay. I’m going to go ahead and mention this
since you haven’t mentioned it. I think it’s something that you would have remembered if
you’d seen it, but the report that we got is that [the Defendant-Appellant] was making
[Grayson] eat dog feces.” Significantly, Ellison testified that he did not see the Defendant-
Appellant force Grayson to consume dog feces or hit Grayson, and that Ellison left the scene
before observing any material details of the offense.

       It is against this backdrop that the trial court admitted the accomplice testimony
regarding the aggravated robbery and refused to provide an instruction consistent with the
accomplice corroboration rule. As suggested by the majority, the aggravated robbery
evidence very well may have been admissible in a severed trial under Tenn. R. Evid. 404(b),
regardless of the trial court’s refusal to instruct the jury. However, none of the procedural
safeguards required as a predicate to the introduction of other bad acts were provided in this
case. See State v. James, 81 S.W.3d 751, 758 (Tenn. 2002) (“[T]o minimize the risk of
unfair prejudice accompanying the introduction of other-acts evidence, Rule of Evidence
404(b) establishes several protective procedures that must be followed before other-acts


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evidence is admissible.”) (citing Neil P. Cohen et al., Tennessee Law of Evidence §
4.04[7][b], at 4–76; State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)). Here, the
evidence was not subjected to a hearing to determine if it satisfied the clear and convincing
standard of proof demanded under Rule 404(b). Additionally, the jury was not instructed as
to any purpose for which the other act evidence was introduced.

        The trial court’s error in this regard was further compounded when it allowed the State
to use the same aggravated robbery evidence, for which the Defendant-Appellant had been
acquitted pursuant to Rule 29, during closing argument and refused to allow the Defendant-
Appellant to rebut the same. The record shows that the prosecutor relied substantially upon
the aggravated robbery conduct in his closing argument and began by stating, “we’re talking
about . . . just the kidnapping charge.” The next four pages of the transcript were dedicated
to recounting the events of the aggravated robbery. He posited, “Maybe you guys could
come up, imagine, dream up, conceive of some reason why someone would confess to a
robbery hoping to get a break on it. There’s not one. [Grayson] told you the truth” and
continued to weave the aggravated robbery conduct throughout his closing argument.
Although the trial court advised the jury that the disposition of the aggravated robbery
indictment was not their concern, the jury, more likely than not, found it difficult to ignore
other alleged criminal conduct by the Defendant-Appellant that was admitted into evidence
without any procedural or substantive safeguards. Here, after the judgment of acquittal was
granted regarding the aggravated robberies, neither party should have been permitted to rely
upon the acquitted conduct in closing argument to the jury. State v. Turner, --- S.W.3d ----,
No. W2007-00891-SC-R11-CD, 2011 WL 4824446 (Tenn. Oct. 12, 2011) (prohibiting use
of prior acquittal during trial); Sherrill v. State, 204 Tenn. 427, 437, 321 S.W.2d 811, 816
(1959) (noting the pre-rule practice of requiring the district attorney to nolle the case after
the judge declares mistrial).

       “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.” State v. Carter, 714 S.W.2d 241, 248 (Tenn. 1986). I have already
commented on the dearth of proof supporting the Defendant-Appellant’s conviction. While
legally sufficient, it does not exceed the required margin to convict. In this case, the trial
court erred by refusing to provide an instruction to the jury consistent with the accomplice
corroboration rule and by allowing the State to argue the aggravated robbery conduct, which
resulted in a Rule 29 acquittal, in its closing argument. Consequently, the Defendant-
Appellant’s conviction was based in part on the testimony of an uncorroborated accomplice
witness, unfairly prejudicial prior bad acts, and improper jury instructions.

        Based upon the above analysis and authority, I would conclude that the aggregated
errors in this case more likely than not affected the outcome of the trial, State v. Rodriguez,


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254 S.W.3d 361, 372 (Tenn. 2008), and deprived the Defendant-Appellant of a fair trial.
Accordingly, I would reverse the Defendant-Appellant’s conviction and remand for a new
trial.


                                                ___________________________________
                                                CAMILLE R. MCMULLEN, JUDGE




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