             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                   Assigned on Briefs August 3, 2004

                     STATE OF TENNESSEE v. RICKY JOE AWATT

                      Direct Appeal from the Circuit Court for Madison County
                              No. 02-170    Roy B. Morgan, Jr., Judge



                       No. W2003-02680-CCA-R3-CD - Filed October 18, 2004


The appellant was convicted in the Madison County Circuit Court of the first degree premeditated
murder of Junecus Bolden. The appellant received a sentence of life imprisonment in the Tennessee
Department of Correction. On appeal, the appellant raises issues regarding the admission of certain
testimony and the propriety of the State’s rebuttal closing argument. Upon review of the record and
the parties’ briefs, we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
THOMAS T. WOODALL, J., joined.

Michael D. Rasnake, Jackson, Tennessee, for the appellant, Ricky Joe Awatt.

Paul G. Summers, Attorney General and Reporter; Helena W. Yarbrough, Assistant District Attorney
General; Jerry Woodall, District Attorney General; and Daniel J. Runde and Lawrence R. Nickell,
Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

                                                      OPINION

                                             I. Factual Background

        In the light most favorable to the State, the proof at trial revealed that one or two weeks prior
to January 16, 2002, Ernest Ontavious Richard Williamson (“Ernest”) had a conversation with the
appellant.1 During the conversation, Ernest learned that there was “bad blood” brewing between the
appellant and the victim, Junecus Bolden. According to Ernest, the appellant claimed that Bolden
had threatened the appellant’s brother, Elliot Awatt, and the appellant was “gonna get Bolden back



         1
           Many of the witnesses in the instant case share a surname. Accordingly, for clarity, we will be using the first
names of the witnesses. W e intend no disrespect to these individuals.
for threatening . . . to kill his brother.” The appellant declared that he wanted to kill Bolden, and
“[h]e said he could do it himself.”

       At approximately 8:00 p.m. on January 16, 2002, the appellant accompanied Ernest to the
home of Ernest’s brother, Anthony Williamson (“Anthony”), because Anthony was going to give
Ernest a haircut. While the three men were together, the appellant again talked about “getting”
Bolden. Ernest and the appellant left Anthony’s house at approximately 10:00 p.m., and Ernest
drove the appellant home.

       Earlier that day, at approximately 7:00 p.m., Bolden went to the residence of brothers Corey
Alexander Moore (“Corey”) and Jim Coty Moore (“Coty”) for assistance installing a compact disc
(CD) player in his car. Bolden was at the Moore residence for several hours. While Bolden was at
the Moore residence, the appellant, who was the Moores’ cousin and next-door neighbor, arrived.
Because of technical difficulties, the men were unable to install the CD player. The appellant pulled
Corey aside and told him that Bolden had stolen some guns from him. Accordingly, the appellant
wanted to “whoop” Bolden. Corey agreed to help and advised Coty of the plan to beat Bolden.

        The appellant informed Bolden that he had a CD player at an abandoned white house in the
neighborhood. Therefore, at approximately 10:00 or 10:30 p.m., the Moores, the appellant, and
Bolden entered Bolden’s car and rode to the location. Once at the house, the Moores and the
appellant pretended to look for the CD player in order to lure Bolden out of the car. Eventually,
Bolden became frustrated with the search and left the house. Once all four men were outside of the
house, Coty announced that it was “taking too long” to begin “teach[ing] [Bolden] a little lesson,”
so he approached Bolden and began to strike him. Corey and the appellant also hit Bolden. After
a few minutes, the Moores determined that they had hit Bolden “enough,” and they got back into the
car, planning to leave Bolden stranded at the location. However, after hearing five loud shots, the
Moores turned to see the appellant standing over Bolden, holding a twelve gauge sawed-off shotgun
with fire coming from the barrel. The appellant got into the backseat of the vehicle, and Coty drove
them home.

        At approximately midnight on January 17, 2002, the appellant arrived at Anthony
Williamson’s house. He told Anthony that “they had beat somebody up,” and Anthony deduced that
the appellant was referring to Bolden. Anthony sent the appellant to Ernest’s house. Shortly
thereafter, Ernest and the appellant returned to Anthony’s house, and the appellant again stated that
he “did it.” The appellant told the Williamsons that “him and his cousins, Coty and Corey, had beat
up Mr. Bolden and then [the appellant] shot him.” The appellant then insisted that the Williamsons
help him move Bolden’s body. The Williamsons reluctantly complied.

        The appellant, driving Bolden’s car, drove the Williamsons to the abandoned white house
which was located approximately one-fourth of a mile from the appellant’s home. Together, the
three men loaded Bolden’s body into the trunk of his car, and they tucked a quilt that had been in the
trunk around the body. Once the body was in the trunk, the appellant requested that Anthony drive
as the appellant did not have a driver’s license.


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        Anthony drove Ernest and the appellant to Ernest’s house so that Ernest could get his car.
Ernest then drove behind Anthony and the appellant to the south fork of Forked Deer River. Upon
arrival at the river, Anthony and the appellant slid Bolden’s car off a boat ramp into the river.
Thereafter, Ernest drove the trio home.

        Later in the afternoon, the appellant returned to the Moore household and asked Corey to help
him and his brother Elliot gather the shotgun shells from the scene of the crime. The men gathered
the shells and disbursed them on the side of the road as they were driving home.

        Bolden’s car and body were discovered at approximately 8:15 or 8:30 a.m. on January 17,
2002. Police questioned the appellant, the Moores, and the Williamsons because they were Bolden’s
friends. Ultimately, the Moores and the Williamsons revealed the story of Bolden’s death. The
appellant was arrested, and a trial followed.

       Based upon the foregoing proof, the jury found the appellant guilty of first degree
premeditated murder. The trial court sentenced the appellant to life imprisonment. On appeal, the
appellant raises the following issues for our review:

               (1) Whether the Honorable Circuit Court erred in allowing the State’s
               witnesses to view exhibits created in the courtroom by a previous
               State’s witness in violation of Rule 615 of the Tennessee Rules of
               Evidence; and

               (2) Whether the Honorable Circuit Court committed plain error in
               allowing the State’s attorney to express his personal opinion about the
               guilt of the appellant and vouch for the credibility of witnesses during
               closing arguments.

We will address each of these issues in turn.

                                            II. Analysis

                               A. Tennessee Rule of Evidence 615

       The appellant argues that the trial court “erred by allowing a Witness, Mr. Anthony
Williamson, to view evidence, specifically diagrams with stickers placed by prior State’s Witness,
Mr. Ernest Williamson, during the subsequent witness’ testimony in violation of Rule 615 of the
Tennessee Rules of Evidence.” Tennessee Rule of Evidence 615 is the rule of sequestration and is
“now colloquially referred to as ‘The Rule.’” Neil P. Cohen et al., Tennessee Law of Evidence, §
6.15[2] (LEXIS publishing, 4th ed. 2000).

        Rule 615 provides that “[a]t the request of a party the court shall order witnesses, including
rebuttal witnesses, excluded at trial or other adjudicatory hearing. . . . The court shall order all


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persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits
created in the courtroom by a witness.” Tenn. R. Evid. 615. The purpose of the Rule is to “prevent
one witness from hearing the testimony of another and adjusting his testimony accordingly.” State
v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992). The Rule may be invoked at any time and is mandatory
upon its invocation. See State v. Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992). There
is no prescribed sanction for violation of the Rule; rather, a trial court retains discretion to impose
the appropriate sanction. See State v. Black, 75 S.W.3d 422, 424 (Tenn. Crim. App. 2001). Further,
“[t]he decision to exclude or allow the testimony is a matter within the discretion of the trial court,
subject to a showing of abuse and prejudice to the complaining party.” Id. at 424-25.

        The appellant’s complaint centers around the testimony of Ernest and Anthony Williamson.
During direct examination, the State asked Ernest to examine a diagram of the abandoned house
where Bolden was killed, which diagram was entered into evidence as Exhibit 3. Thereafter, the
State requested that Ernest place a sticker on the diagram “where the car was parked when you all
pulled up there [to remove the body].” This sticker was labeled “EW 1.” Next, Ernest placed a
sticker, later labeled “EW 2,” to indicate where the car “ultimately end[ed] up” after it was backed
into the driveway. Finally, Ernest placed sticker “EW 3” to indicate the location of Bolden’s body
when he arrived at the abandoned house. The State then presented Exhibit 5, a diagram of the south
fork of Forked Deer River. The State asked Ernest to place sticker “EW 4” to depict the location
where Ernest “parked while the Bolden vehicle went down towards the river.”

        After Ernest’s testimony, the State called Anthony Williamson to testify. The appellant
objected to Anthony viewing the diagram bearing the labeled stickers, arguing that “the rule would
declare that we have a clean slate in here so this witness isn’t influenced by anything that’s already
been said or already been put in front of the jury.” The trial court reasoned that because the Rule had
been requested at the beginning of trial, Anthony “would have no indication that they were put up
there as a result of the prior testimony.” However, the trial court cautioned that “this witness should
not approach so close that he might read any initials on the chart but could still point out at some
distance, if asked by the State.”

         During direct examination of Anthony Williamson, the State brought out Exhibit 3, the
diagram of the abandoned house where Bolden was killed. The State asked Anthony if “you can put
that sticker up [on Exhibit 3] where you recall the car being stopped, and I’m going to put ‘AW1.’”
Next, the State gave Anthony another sticker, labeled “AW 2,” requesting that he place the sticker
on the diagram to indicate where he recalled seeing Bolden’s body. Finally, the State displayed
Exhibit 5, the diagram of the south fork of Forked Deer River, and asked Anthony to place a sticker
indicating where he stopped on the boat ramp prior to sliding Bolden’s car into the river.

         On appeal, the appellant argues that “[a]llowing Mr. Anthony Williamson to approach and
view State’s Exhibits Numbers 3 and 5 was tantamount to allowing Mr. Anthony Williamson to hear
the testimony of the prior Witness, Mr. Ernest Williamson.” Initially, we note that, based upon the
trial court’s ruling to the appellant’s objection, Anthony should not have approached the diagrams
to personally place the stickers on the exhibits. Regardless, while Anthony may have viewed stickers


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placed on the diagrams by Ernest, there is no indication that the stickers impacted Anthony’s
testimony. See Black, 75 S.W.3d at 425. Moreover, our examination of the diagrams reveals that
Anthony’s stickers were not placed in the same location as any of the stickers placed by Ernest.
Moreover, the State’s questions regarding the diagram were not identical, further lessening any
impact upon the appellant. Accordingly, we conclude that even if there were a violation of Rule 615,
such violation is harmless. See Anthony, 836 S.W.2d at 605; see also Tenn. R. Crim. P. 52(a).

                                        B. Closing Arguments

        Next, the appellant complains that the State made an improper closing argument by
interjecting its “personal opinion as to the appellant’s guilt as well as vouching for the credibility of
State’s witnesses.” The appellant concedes that he did not object to any of the foregoing statements
during the State’s closing argument. Ordinarily, absent such contemporaneous objection, the
appellant would have waived this issue. See Tenn. R. App. P. 36(a); State v. Little, 854 S.W.2d 643,
651 (Tenn. Crim. App. 1992).

        However, the appellant contends that

                since the State’s case rose or fell upon the credibility of the State’s
                witnesses, the [trial court] should have curtailed the prosecutor’s
                improper arguments and issued curative instructions to the jury sua
                sponte. The [trial court’s] failure to correct the prosecutor and
                provide the jury with curative instructions was “plain error.”

Tennessee Rule of Criminal Procedure 52(b) provides that this court may address “[a]n error which
has affected the substantial rights of an accused . . . at any time, even though not raised in the motion
for a new trial . . . where necessary to do substantial justice.” See also Tenn. R. Evid. 103(d). We
may only consider an issue as plain error when all five of the following factors are met:

                (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. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see also
State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for determining plain
error). Furthermore, the “‘“ plain error” must be of such a great magnitude that it probably changed
the outcome of the trial.’” Adkisson, 899 S.W.2d at 642 (quoting United States v. Kerley, 838 F.2d
932, 937 (7th Cir. 1988)). Upon our examination of the record, we decline to address this issue as
plain error.




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        It is well-established that closing argument is an important tool for both parties during a trial;
thus, counsel is generally given wide latitude during closing argument, and the trial court is granted
wide discretion in controlling closing arguments. See State v. Carruthers, 35 S.W.3d 516, 577-78
(Tenn. 2000) (appendix). “Notwithstanding such, arguments must be temperate, based upon the
evidence introduced at trial, relevant to the issues being tried, and not otherwise improper under the
facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).

          The appellant specifically complains that the State, during its rebuttal closing argument,
stated:

                        Poor Ricky Awatt’s been sitting in jail. That’s where Ricky
                 Awatt deserves to be. That’s why you need to find him guilty and
                 send him to the penitentiary under first degree murder.

                        ....

                         Ladies and gentlemen, that ain’t how it works. And okay, you
                 got two veteran detectives who are working this case, and they’re
                 gonna get fooled by a couple of snot-nosed teenagers [the Moores and
                 the Williamsons]? Detective Lowery’s eyes are gonna widen every
                 time some other little morsel is dropped in his lap? No, that’s not
                 how investigations go. That’s not how interrogations go. You sit
                 somebody down, you ask them. You press them closely. You get at
                 the inconsistencies. You see where their going from. You question
                 them closely, and through close questioning and good close detective
                 work, how did the finger come to point? To Ricky Awatt because he
                 did it. He did it.

The appellant argues that “[t]he prosecutor was clearly vouching for the credibility of the State’s
detectives. The prosecutor was also vouching for the credibility of the State’s witnesses that were
interviewed by the detectives.”

        “In determining whether statements made in closing argument constitute reversible error, it
is necessary to determine whether the statements were improper and, if so, whether the impropriety
affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996). In
connection with this issue, we must examine the following factors:

                 “(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 statement[;]



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                  (4) the cumulative effect of the improper conduct and any other errors
                  in the record [; and]
                  (5) the relative strength or weakness of the case.”

Id. (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

        Our examination of the alleged error is limited because the record does not include a
transcript of the State’s initial closing argument or the appellant’s closing argument.2 However, the
beginning of the State’s rebuttal argument indicates that the prosecutor’s comments are in response
to contentions made by the appellant in closing argument. Notably, the State elucidated:

                         Learned counsel, to make his theory fly, do you know what
                  he’s got to do between the lines? Is convince you that these two
                  people and the system is corrupt. . . . [That] [t]hey’re our boys. Corey
                  and Coty are our boys, the State’s boys, these two fellows’ boys who
                  brought this prosecution and who investigated the case.

Accordingly, the State’s rebuttal closing argument appears to be a response to the appellant’s
contention that the State’s witnesses were acting to incriminate the appellant in order to prevent their
own prosecution. See State v. Timothy Wayne Holland, No. M2001-03129-CCA-R3-CD, 2002 WL
31007428, at *6 (Tenn. Crim. App. at Nashville, Sept. 4, 2002). We can discern no impropriety by
the State in its closing.

                                                  III. Conclusion

         Finding no reversible error, we affirm the judgment of the trial court.



                                                                 ___________________________________
                                                                 NORMA McGEE OGLE, JUDGE




         2
           The appellant “carries the burden of ensuring that the record on appeal conveys a fair, accurate, and complete
account of what has transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b).
Therefore, generally, “[i]n the absence of an adequate record on appeal, this court must presume that the trial court’s
rulings were supported by sufficient evidence.” State v. Oody, 823 S.W .2d 554, 559 (Tenn. Crim. App. 1991).



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