        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 6, 2015


                 STATE OF TENNESSEE v. PAMELA MOSES

                 Appeal from the Criminal Court for Shelby County
                    No. 1300818    James C. Beasley, Jr., Judge


                No. W2014-01986-CCA-R3-CD - Filed May 17, 2016
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Defendant, Pamela Moses, was indicted by the Shelby County Grand Jury for theft under
$500. Defendant was convicted by a jury as charged. The trial court imposed a $350
fine. Defendant appeals and raises the following issues for our review: 1) the trial court
improperly allowed a witness for the State, who was an inmate, to wear “street” clothing
when she testified; 2) the trial court erred by limiting cross-examination of a State‟s
witness; and 3) the State committed prosecutorial misconduct during closing argument.
Having reviewed the record on appeal, we conclude that the judgment of the trial court
should be affirmed.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Michael R. Working, Memphis, Tennessee, for the Appellant, Pamela Moses.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant
District Attorney General, for the Appellee, State of Tennessee.


                                       OPINION

Facts

       Sophie Strauss testified that on September 28, 2012, she was working as an
assistant manager at American Apparel in Memphis. She testified that Defendant was
waiting outside the store when Ms. Strauss opened the store. Ms. Strauss opened the
doors “a couple minutes early for her.” Ms. Strauss was standing behind the cash
register, and Defendant asked if there were any tights in the store. Ms. Strauss pointed
out the tights to Defendant, and Defendant took two pairs of tights into a dressing room
with her. Ms. Strauss noticed that both pairs were on the same hanger. While Defendant
was in the dressing room, Ms. Strauss was busy helping another customer. Defendant
came out of the dressing room and told Ms. Strauss that she was “racist” for helping the
other customer and not her. Ms. Strauss testified, “then she got real loud and it was
causing a scene and so I was like you have to go.” Defendant left the store holding the
tights in her hand. Ms. Strauss testified that Defendant asked Ms. Strauss to check her
out, and Ms. Strauss refused and told Defendant to leave the store. Ms. Strauss testified,
“She was like, „no.‟ She was like, „if you‟re not going to sell me the pants, I‟ll just steal
them[,]‟ and she walked out of the front door and the alarms went off.” Ms. Strauss saw
a police officer in his vehicle at a nearby traffic light. She told him that Defendant had
stolen something from the store. The tights were recovered and returned to the store.
Ms. Strauss testified that the tights were valued at $42.

        Ms. Strauss acknowledged that she had a “serious” criminal charge pending
against her that carried a potential sentence of 15 to 25 years. She testified that the State
had not promised her any consideration in exchange for her testimony in Defendant‟s
trial. Ms. Strauss denied that she discriminated against Defendant because of her race.
Ms. Strauss acknowledged that she refused Defendant‟s request for service. She testified,
“[s]he did ask me to check her out and I said no. Because she had already caused a scene
and I wasn‟t going to fool with her, you know?” Ms. Strauss testified that there were
plastic globes inside the store that were intended to prevent theft, but they did not contain
security cameras.

        Andrea Everett, an employee at American Apparel, testified that she was working
on the day of the incident. She testified that Defendant was one of the first customers to
come into the store. Ms. Everett was cleaning inside the store while Ms. Strauss was
assisting Defendant. Ms. Everett heard an altercation between Defendant and Ms.
Strauss. She testified that Defendant was upset, and Ms. Strauss was “trying to calm her
down.” She testified that Defendant claimed that Ms. Strauss had accused her of stealing
when she took the tights into the dressing room. Ms. Everett testified that Defendant told
Ms. Strauss, “„I can buy you.‟” Ms. Everett testified, “that‟s when I felt like it ha[d]
gotten out of control.” She testified that Ms. Strauss “pretended like she was going to
call the police, but she really wasn‟t calling the police, and [Defendant] got upset and
said, „well, I‟m going to give you a reason to call the police.‟ And that‟s when she took
the tights and walked out the door.” Ms. Everett testified that Ms. Strauss refused to
allow Defendant to purchase the tights, and Defendant asked Ms. Everett, “„sister, you‟re
not going to ring me up?‟” Ms. Everett also refused because “the situation had escalated
to the point where she could purchase the tights online or go to a different store if she felt
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that she was offended in any type of way within our store.” Ms. Everett testified that
there were no security cameras in the store. She testified that there were “security
bubble[s]” located inside the store, but they were “supposed to be like a pretend camera.”

        Officer Parker Craig, of the Memphis Police Department, was stopped at a red
light at the intersection where the clothing store is located. He saw Defendant leave the
store. He testified that Defendant “looked at [him], and kept walking, didn‟t seem out of
the ordinary.” He testified that “[a] few minutes later,” he saw Ms. Strauss exit the store.
She was waving at him and pointing at Defendant, and she told Officer Craig that
Defendant had stolen a pair of pants. Officer Craig saw Defendant getting into her
vehicle. He activated his blue lights and pulled his vehicle behind Defendant‟s vehicle.
He saw something that was thrown out of the passenger side of Defendant‟s vehicle.
Officer Craig approached Defendant‟s vehicle and asked her get out of the vehicle. He
asked Defendant to sit in the backseat of his vehicle while he spoke to Ms. Strauss.
Officer Craig retrieved the pants that were on the ground beside Defendant‟s vehicle and
returned them to Ms. Strauss.

       Officer Craig testified that Defendant was initially agitated, and she and Ms.
Strauss had a “heated” exchange. He testified that Defendant accused Ms. Strauss of
being racist. He testified that Defendant was ultimately cooperative, and he issued
Defendant a citation rather than placing her under arrest.

Analysis

Confrontation clause

       Defendant contends that the trial court violated her right to confrontation by
permitting the witness Sophie Strauss (who was incarcerated in lieu of bail) to testify
wearing street clothing and by limiting defense counsel‟s cross-examination of Ms.
Strauss.

       The Confrontation Clause provides a criminal defendant the right to confront and
cross-examine witnesses. See U.S. Const. amends. VI, XIV; Tenn. Const. art. I, § 9;
State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996). A component part of this
constitutional protection is the right to establish bias or to otherwise impeach the
credibility of a witness. State v. Rice, 184 S.W.3d 646, 670 (Tenn. 2006); State v. Sayles,
49 S.W.3d 275, 279 (Tenn. 2001); State v. Howell, 868 S.W.2d 238, 252 (Tenn. 1993).
The propriety, scope, manner, and control of cross-examination of witnesses, however,
remain within the discretion of the trial court. State v. Reid, 213 S.W.3d 792, 839 (Tenn.
2006); Rice, 184 S.W.3d at 670. When the defendant‟s right to cross-examine witnesses

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is unreasonably restricted, the trial court abuses its discretion. Reid, 213 S.W.3d at 839;
Rice, 184 S.W.3d at 670; Davis v. State, 212 S.W.2d 374, 375 (Tenn. 1948).

       In State v. Sayles, our supreme court explained, “[a] defendant has the right to
examine witnesses to impeach their credibility or to establish that the witnesses are
biased. This includes the right to examine a witness regarding any promises of leniency,
promises to help the witness, or any other favorable treatment offered to the witness. 49
S.W.3d 275, 279 (Tenn. 2001) (citing State v. Smith, 893 S.W.2d 908, 924 (Tenn. 1994)
and State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993)). The propriety,
scope, manner, and control of the cross-examination of witnesses rest within the
discretion of the trial court. State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App.
1995). This court will not, therefore, disturb a trial court‟s limits on cross-examination
unless we find that the court has placed unreasonable restrictions on that right. State v.
Wyrick, 62 S.W.3d 751, 770 (Tenn. Crim. App. 2001); Dishman, 915 S.W.2d at 463.
Although the trial court retains discretion regarding the exercise of the right to examine
witnesses for bias, any undue restriction on that right may violate a defendant‟s right to
confrontation under the Sixth Amendment of the United States Constitution and Article I,
Section 9, of the Tennessee Constitution. Sayles, 49 S.W.3d at 279.

       Once a constitutional error has been established, the burden is on the State to
prove that the error is harmless beyond a reasonable doubt. Momon v. State, 18 S.W.3d
152, 167 (Tenn. 1999). Whether an error is harmless depends upon various factors,
including “„the importance of the witness‟ testimony in the prosecution‟s case, whether
the testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the overall strength of the prosecution‟s
case.‟” Rice, 184 S.W.3d at 670-71 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986)).

       (a) Permitting incarcerated witness to wear street clothes during testimony

       Defendant argues that by allowing Ms. Strauss, who was incarcerated at the time
of Defendant‟s trial, to wear street clothes, the trial court allowed the State to create a
“false portrayal” of the witness and bolster the witness‟ credibility. Prior to calling its
first witness, the State announced to the trial court that it was going to have Ms. Strauss
wear street clothing. Defense counsel objected, and the following exchange occurred:

        [Defense counsel]: Judge, we would ask that she come through the jail
        door and [Defendant] objects to her being in street clothes.


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        THE COURT:          Well, [defense counsel], I allow defendants to do that
        so I don‟t really see any reason I can‟t allow a witness to do that, she‟s
        subject to cross[-]examination.

       Defendant asserts that it was improper to permit the incarcerated witness to
borrow nice clothing from the government to wear during testimony. There does not
appear to be any case law in Tennessee on this precise issue. In its brief, the State cites
an opinion from the Kansas Supreme Court, in which the court examined the case law in
other jurisdictions and concluded as follows:

               All of these cases, whether relating to a defendant, witness, or
        nonwitness being brought into the courtroom in jail clothing, are
        expressly or impliedly critical of the practice. We agree with this
        criticism and conclude, in the first step of our analysis, that given the
        consensus in the case law that jail clothing taints a trial, a trial court
        almost always abuses its discretion to control the courtroom when it
        allows a defendant, witness, or nonwitness to be brought before a jury in
        jail clothing without an articulated justification explaining why it is
        necessary for the person to wear jail clothing and does not consider
        giving an admonition or instruction to the jury that it should not consider
        the clothing or the person‟s incarceration.

State v. Ward, 256 P.3d 801, 824 (Kan. 2011).

        We conclude that Defendant‟s constitutional rights were not violated by the trial
court‟s decision to allow an incarcerated State‟s witness to wear street clothes while
giving her testimony. In fact, both the State and a defendant in a criminal trial are
entitled to have incarcerated witnesses wear street clothes while giving testimony. We
fail to see how Defendant was prejudiced by the physical appearance of the witness at
trial.

      (b) Limitation on cross-examination

       The State argued a motion in limine asking that defense counsel not be permitted
to cross-examine Ms. Strauss about her pending criminal charge. The prosecutor argued:

             Judge, we would ask there be no mention unless [Ms.] Strauss
        herself – she actually has a pending A-felony drug case, but that said, she
        has no prior convictions, nothing to do with any type of lying or untruth
        and we would ask no mention of that be done and we certainly won‟t

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        attempt to open the door, but we would ask that no mention of it be done
        on cross[-]examination. It‟s not relevant to this.

      The trial court ruled as follows:

              Well, but with regard to whether or not there‟s any deal that‟s been
        made or any promises for any kind of thing for purposes of her
        testimony, I think that is relevant and does go to bias. I mean she can
        say no, but I don‟t think that I can preclude [defense counsel] from
        asking if she‟s got anything that would influence her ability to testify.

              Now, we‟re not going to get into the facts of what kind of case
        she‟s got or anything like that. But I think the fact that she‟s got a matter
        that‟s pending in the courts right now is relevant and that she – you
        know, has there been any offers made by [the State] in exchange for her
        testimony, I think is relevant to go to her bias.

        The State informed the court that Ms. Strauss had not yet been indicted, and the
trial court stated,

              Well, I think, [defense counsel], in light of that, that I don‟t really
        know what she‟s going to be charged with, I think it would be proper
        that you can question her about [the fact that] she has pending charges in
        these courts and she could be facing substantial time and has she made
        any deals with the State in exchange for her testimony.

              But to get into the fact that they‟re Class A [f]elonies, they may not
        be. I don‟t know what they will do when they indict.

       Ms. Strauss acknowledged on cross-examination that she was facing a “serious”
criminal charge and if convicted, she would serve a “substantial amount of jail time,”
between 15 and 25 years. She also acknowledged that her case was scheduled for the
following day, but she testified that she had no agreement with the State in exchange for
her testimony. The trial court erred by prohibiting Defendant from naming the offense
for which Ms. Strauss was charged. It does not matter that she had not yet been indicted.
She was in jail in lieu of bond, charged with a Class A felony by the State, which was
also prosecuting Defendant. It is a close case as to whether the error is harmless, but
considering the evidence and the information that the trial court did allow Defendant to
mention, we conclude the error was harmless beyond a reasonable doubt. See State v.
Rice, 184 S.W.3d 646, 670-71 (Tenn. 2006) (Whether an error is harmless depends upon
various factors, including “„the importance of the witness‟ testimony in the prosecution‟s
                                             6
case, whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the extent
of cross-examination otherwise permitted, and, of course, the overall strength of the
prosecution‟s case.‟” (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

Closing argument

       Defendant contends that the prosecutor engaged in improper closing argument by
misstating the evidence, by attempting to inflame the passions or prejudices of the jury,
by “implicitly” commenting on Defendant‟s decision not to testify, and by vouching for
the credibility of the State‟s witness. Defendant acknowledges that she failed to
contemporaneously object and asks this court to consider the issue under a plain error
analysis.

        Defendant has raised this issue for the first time on appeal. Defendant failed to
object at trial to any of the prosecutor‟s statements during closing argument about which
she now complains. Defendant also failed to raise this issue in her motion for new trial.
On the issue of failure to make a contemporaneous objection, our supreme court has
stated:

        [W]e stress that it is incumbent upon defense counsel to object
        contemporaneously whenever it deems the prosecution to be making
        improper argument. A contemporaneous objection provides the trial
        court with an opportunity to assess the State‟s argument and to caution
        the prosecution and issue a curative instruction to the jury if necessary.

State v. Jordan, 325 S.W.3d 1, 57–58 (Tenn. 2010) (footnote omitted). Defense
counsel‟s failure to object contemporaneously will typically result in waiver of the issue
on appeal. Id. at 58; Tenn. R. App. P. 36(a) (providing that an appellate court need not
grant relief where the complaining party failed to take reasonable available action to
prevent or nullify an error). Additionally, “no issue presented for review shall be
predicated [on] . . . [a] ground upon which a new trial is sought, unless the same was
specifically stated in a motion for new trial.” Tenn. R. App. P. 3(e). Accordingly, we
conclude that Defendant has waived consideration of the issue.

Sufficiency of the evidence

       We note that in Defendant‟s brief, her statement of the issues presented includes
the issue of “whether the evidence was sufficient to support the verdict[.]” However,
Defendant fails to raise this issue anywhere in the argument section of her brief. “Issues
which are not supported by argument, citation to authorities, or appropriate references to
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the record will be treated as waived in this court.” Tenn. R. Ct. Crim. P. 10(b); see also
Tenn. R. App. P. 27(a)(7) (stating that the appellant‟s brief must contain an argument
“setting forth . . . the contentions of the appellant with respect to the issues presented, and
the reasons therefor . . . with citations to the authorities . . . relied on”). Because
Defendant failed to comply with these rules, she has waived our consideration of this
issue.

                                      CONCLUSION

       Based on the foregoing analysis, the judgment of the trial court is affirmed.


                                    ____________________________________________
                                    THOMAS T. WOODALL, PRESIDING JUDGE




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