         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 22, 2003

            STATE OF TENNESSEE v. RALPH LAMAR WILLIAMS
                        ALIAS RALPH DANIELS

                    Appeal from the Criminal Court for Hamilton County
                            No. 236399   Rebecca Stern, Judge



                                 No. E2002-02274-CCA-R3-CD
                                       September 8, 2003

A Hamilton County Criminal Court jury convicted the defendant, Ralph Lamar Williams, of four
counts of aggravated rape, a Class A felony; one count of rape, a Class B felony; and one count of
aggravated kidnapping, a Class B felony. The trial court sentenced him as a violent offender to life
without parole for each conviction. The defendant appeals, claiming that the prosecutor improperly
suggested to the jury during closing argument that the defense bore the burden of establishing the
defendant’s innocence. We affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE , J., joined.

David R. Barrow, Chattanooga, Tennessee, for the appellant, Ralph Lamar Williams alias Ralph
Daniels.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
William H. Cox, III, District Attorney General; and Lila Jayne Statom, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        This case relates to the victim’s being kidnapped from a Krystal Restaurant in Chattanooga
on January 20, 2001. The victim testified that about 9:30 p.m., she was in the drive-thru line at a
Krystal’s restaurant. The defendant approached her car, hit her in the head, got into the car, and
drove away from the restaurant. The defendant continued to hit the victim in the head and held her
down in the front seat. The victim lost consciousness and awoke in an abandoned apartment. The
defendant ordered the victim to take off her clothes and raped her vaginally and anally. He also
raped her vaginally and anally with a cardboard tube that he had taken from a coathanger and forced
the victim to perform fellatio. In addition to repeatedly raping the victim throughout the night, the
defendant smoked crack and beat her. At some point, the victim heard the defendant talking to a
man named “Red” in another room. The victim was able to escape from the apartment about 10:00
a.m. the next day and drove to a Golden Gallon convenience store where a clerk telephoned the
police.

        Officer Davis Lewis of the Chattanooga Police Department was dispatched to the Golden
Gallon on the morning of January 21, 2001. He found the victim sitting in her car, and she told him
that she had been raped. The victim was hysterical, and her face was bleeding and bruised. The
victim took police officers to an abandoned apartment at 256 West 38th Street in the Alton Park
housing project. In a room of the apartment, Officer Lewis saw cushions on the floor, blood on the
wall next to the cushions, a blanket, a yellow shirt with hair on it, a crack pipe, and a cardboard tube
from a coathanger. The victim described her attacker, and Officer Lewis recognized the description
as that of the defendant.

        Chattanooga Police Sergeant Dan Moody testified that he went to the hospital to interview
the victim and then took her to a rape crisis center. He later collected the victim’s clothes and a rape
kit from the crisis center and sent them to the Tennessee Bureau of Investigation (TBI) for testing.
Sergeant Moody interviewed the victim at the police station on January 22, and the victim quickly
picked the defendant’s photograph out of a photograph array. A warrant was obtained for the
defendant, and the defendant was arrested on January 24.

        Ardyce Ridolfo, a registered nurse at the Sexual Assault Crisis Center, testified that she
examined the victim on the afternoon of January 21. The victim, who was crying and holding her
arms around her body, had multiple bruises and cuts to her face. The victim also had bruises on her
eyes, right knee, hands and fingers, and one of her arms, and a clump of hair was missing from her
head. Ms. Ridolfo found lacerations and abrasions to the victim’s vagina and rectum that she did
not believe could have occurred during normal sexual intercourse. She collected samples for a rape
kit and found sperm during her examination of the victim.

         David Lee Heatrington, Tommy Lee Hutchinson, and Edward Lamar “Red” Jones testified
for the defense that they saw the defendant with a woman on the night of January 20. Mr.
Heatrington said that about 9:30 p.m., he was at an apartment in Alton Park, that the defendant and
the victim also were at the apartment, and that the defendant and the victim had a conversation about
exchanging sex for drugs. He said the defendant and the victim left the apartment about 10:00 p.m.
Mr. Hutchinson testified that he saw the defendant with a woman about 11:00 p.m. and that they
were getting out of a car on 38th Street. Mr. Jones testified that about 9:30 p.m., he and the
defendant went to Alton Park to buy drugs. He said he and the defendant bought crack and smoked
it in an abandoned apartment about 11:30 p.m. Mr. Jones fell asleep and heard the defendant bring
a woman into the apartment about 12:30 a.m. The defendant and the woman were in another room
of the apartment, and Mr. Jones did not see her. The next day, Mr. Jones entered the room and saw
the woman lying next to the defendant. The woman gave Mr. Jones a cigarette, and he left the
apartment.



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         The parties stipulated that vaginal and rectal swabs collected from the victim contained the
defendant’s sperm, that semen found on the cardboard tube collected from the apartment belonged
to the defendant, and that DNA found on the cardboard tube and blood found on a wall in the
apartment belonged to the victim. Special Agent Louis Kuykendall of the TBI Crime Laboratory
testified that the victim’s blood tested negative for alcohol, and TBI toxicologist Dawn King testified
that the victim’s blood tested negative for drugs. The jury convicted the defendant of four counts
of aggravated rape, one count of rape, and one count of aggravated kidnapping.

        The defendant claims that he is entitled to a new trial because the prosecutor suggested to the
jury during closing argument that the defense bore the burden of establishing the defendant’s
innocence. The state responds that the defendant has waived this issue because he failed to object
to the prosecutor’s statements at trial. The state also argues that the prosecutor’s remarks were not
improper and that, in any event, any error is harmless because the trial court properly instructed the
jury that the burden of proof was on the state. We agree with the state’s arguments.

        The Tennessee Supreme Court has recognized that “argument of counsel is a valuable
privilege that should not be unduly restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).
Attorneys have great leeway in arguing before a jury, and the trial court’s broad discretion in
controlling their arguments will be reversed only upon an abuse of discretion. Terry v. State, 46
S.W.3d 147, 156 (Tenn. 2001). However, closing argument must be “temperate, must be predicated
on evidence introduced during the trial of the case and must be pertinent to the issues being tried.”
Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). Prosecutorial misconduct does not constitute
reversible error unless the outcome was affected to the defendant’s prejudice. State v. Bane, 57
S.W.3d 411, 425 (Tenn. 2001). In Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976),
this court set out the following considerations for determining whether the state’s conduct could have
improperly prejudiced the defendant and affected the verdict:

               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 improper statement.

               4. The cumulative effect of the improper conduct and any other
               errors in the record.

               5. The relative strength or weakness of the case.

See also State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in determining
if the misconduct resulted in reversible error).



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         During his closing statement, the prosecutor said the following:

                When [the defendant’s attorney] argues to you, you have got to ask
                this question of him, and that question is, “Well, what difference does
                that make? What about what your client did to this victim? What
                about the fact that your client beat this victim senseless? What about
                the fact that your client anally raped her, orally [raped] her, vaginally
                raped her, and stuck a rod up inside of her? What about that, [defense
                attorney]? What’s your defense to that?” That’s what we are here
                for.

                ....

                        So when [the defendant’s attorney] gets up here to talk to you,
                be asking yourself as you listen to him, “[defense attorney], you tell
                me why your client did this. What justification and right does your
                client have to do this to this person?”

        As the state points out in its brief, the defendant failed to object at trial to the prosecutor’s
statements. The failure to object contemporaneously constitutes a waiver of the issue pursuant to
Rule 36(a), T.R.A.P. See also State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (failure
to object to prosecutor’s alleged misconduct during closing argument waives any later complaint).
Moreover, we see no plain error because we believe that the prosecutor was commenting on the
evidence introduced at trial, and that his statements were not improper. Also, the trial court properly
instructed the jury that the state had the burden of proving the defendant’s guilt beyond a reasonable
doubt. The defendant is not entitled to relief.

         Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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