                                                                                        12/13/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 2, 2018

               STATE OF TENNESSEE v. ARVESTER BROWN

                 Appeal from the Criminal Court for Shelby County
                 No. 15-04907      John Wheeler Campbell, Judge
                      ___________________________________

                           No. W2017-02547-CCA-R3-CD
                       ___________________________________


The Defendant, Arvester Brown, appeals his convictions for felony murder and especially
aggravated robbery, for which he received an effective sentence of life imprisonment.
On appeal, the Defendant contends that (1) the trial court erred in failing to declare a
mistrial due to the behavior of one of the State’s witnesses; (2) the trial court erred in
excluding evidence that the victim had agreed to carry out a “hit” on the Defendant; and
(3) the State made improper statements during closing arguments. Upon reviewing the
record and the applicable law, we affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Jonathan Mosley and Handel Durham (at trial), Memphis, Tennessee, and Monica A.
Timmerman (on appeal), Bartlett, Tennessee, for the appellant, Arvester Brown.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Kirby May and Leslie
Byrd, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                       OPINION

                 FACTUAL AND PROCEDURAL BACKGROUND

      The evidence presented at trial established that during the early morning hours of
August 24, 2103, the Defendant shot the victim, Mr. Breman Hunter, in the head while
the victim was sitting in his car in the parking lot of an apartment complex in Memphis,
Tennessee. The Defendant took money and drugs from the victim and fled the scene.

       Mr. Samuel Jones testified that the Defendant came to his apartment at
approximately 1:00 a.m. and wanted to purchase cocaine. Mr. Jones called the victim,
who was in the area and, as instructed by the Defendant, told the victim to bring $20.00
worth of cocaine. The victim arrived approximately twenty minutes later. When the
victim arrived, he was holding a .38 caliber black revolver and a large bag that contained
numerous smaller bags of cocaine. The Defendant gave the victim $15.00 in exchange
for cocaine. The victim reached into his pocket, produced a large “bankroll” of money
broken down into $20.00 bills, and added the Defendant’s money to the “bankroll.”

        The victim, the Defendant, and Mr. Jones remained in Mr. Jones’s apartment for a
period of time while talking, listening to music, and using some of the victim’s cocaine.
The Defendant kept walking back and forth to the bathroom. The victim said he needed
to leave. As he was leaving, the Defendant told the victim, “Hold on, big bro. I need to
put a bug in your ear.” The Defendant told Mr. Jones that he would return, and Mr. Jones
left the front door open for the Defendant.

       After a few minutes, Mr. Jones went outside to see what was happening and to
smoke a cigarette. He stood on the balcony of his second-floor apartment and leaned
over the railing. He saw the Defendant leaning inside the passenger side of the victim’s
car and talking to the victim, who was sitting in the driver’s seat. The Defendant was
holding open the passenger side door; the car was running; and the interior lights were
on. The Defendant and the victim were the only two people in the parking lot.

      The Defendant turned around and told Mr. Jones that he would return to the
apartment soon. As Mr. Jones was walking away, he heard a gunshot. He turned around
and saw the victim leaning on the back of the driver’s seat with blood coming out of his
head. The Defendant was standing by the victim’s car. Mr. Jones ran back inside his
apartment and onto the back patio, and he heard someone twisting the knob of his front
door. He called 9-1-1 and saw the Defendant run by and toward another apartment
complex. Mr. Jones stated that the Defendant had not parked his car near Mr. Jones’s
apartment but had parked his car in a parking lot at a nearby apartment complex. Mr.
Jones spoke to police officers at the scene and later identified the Defendant in a
photographic lineup as the shooter.

      Memphis Police Officer Tim Young was the first officer to arrive at the scene. As
he was driving through the parking lot, he saw a small silver car with its lights and radio
on. Officer Young paused in case the car backed out of the parking space, but the car
never moved. Officer Young exited his car and approached the silver car on the driver’s
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side. The interior lights were on, and the doors were closed. Officer Young saw the
deceased victim slumped back in his seat with a gunshot wound to his right front temple.
The victim’s right pants pocket was turned inside out. It was cloudy and hazy inside the
car, which indicated that a firearm had recently been discharged inside the car.

       Officers located a .38 caliber Smith and Wesson revolver between the victim’s
legs and on the driver’s side floorboard. A spent .40 caliber shell casing was on the
floorboard on the passenger side. Officer Young explained that unlike a revolver, which
does not eject casings, a semi-automatic firearm ejects casings to the right and at an angle
when fired. He stated that the firearm would have had to have been fired inside the car
for the shell casing to land on the floorboard. Officers located a baggie containing 1.56
grams of cocaine in the bottom pocket of the driver’s side door. No other drugs or money
were found on the victim or in the victim’s car. The Defendant later turned himself in to
the police.

        Dr. Marco Ross, a forensic pathologist, performed the autopsy on the victim. He
stated that the victim sustained a gunshot wound to the right outside portion of his
forehead. The bullet penetrated the victim’s brain, and Dr. Ross recovered bullet
fragments on both sides of the back of the victim’s brain. Dr. Ross observed gunpowder
stippling around the entrance wound, which he said indicated that the victim was shot
from a short distance. Mr. Ross concluded that the victim’s cause of death was a gunshot
wound to the head and that the victim’s manner of death was homicide.

       The Defendant testified in his defense, admitting that he shot the victim but
maintaining that he did so in self-defense. He said that he knew how to defend himself
through his firearms training at a Rangemaster class, that he had a gun permit, and that he
was able to obtain the permit because he did not have any criminal convictions. He said
that when he arrived at Mr. Jones’s apartment, Mr. Jones asked to borrow $20.00 to
purchase cocaine, and the Defendant gave him $15.00. Mr. Jones called the victim, who
came to the apartment and sold Mr. Jones cocaine. The Defendant acknowledged that he
was planning to use cocaine and that he and Mr. Jones would use drugs together on
occasion.

       The Defendant testified that he, the victim, and Mr. Jones remained in the
apartment for some time and that nothing unusual occurred while at the apartment.
While the Defendant and the victim were leaving, the victim told the Defendant that he
wanted to speak to him outside. The Defendant went to the victim’s car to see what he
wanted. The Defendant stated that the victim pulled a black revolver on him and threated
to “blow [his] a** off.” The Defendant said he then shot the victim, explaining, “I
defended myself. I was in fear of my life.”

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       The Defendant testified that as he was leaving, he stopped on the street and
vomited. He said he “freaked out” and threw his gun away on the expressway. He
maintained that he was afraid because he believed that police officers would kill him
before listening to him. He later met with police officers and made a statement that he
maintained was consistent with his testimony at trial.

       On cross-examination, the Defendant testified that he did not know that the victim
had a gun in his possession. He said he sat in the passenger’s seat of the victim’s car,
while the victim sat in the driver’s seat. The Defendant stated that the victim showed him
a bag of drugs and that the Defendant joked that the bag contained the “good stuff” and
that the victim sold Mr. Jones “some b******t.” The Defendant maintained that the
victim produced a black revolver from between his legs and threatened to shoot him. The
Defendant stated that while jumping away from the victim, he produced his gun and shot
the victim while in the doorway of the car. The Defendant acknowledged that he did not
call 9-1-1 and that he was still in the parking lot when the police officers arrived.

       The jury convicted the Defendant of one count of felony murder in the
perpetration of or attempt to perpetrate robbery and one count of especially aggravated
robbery. The trial court imposed concurrent sentences of life imprisonment and twenty
years, respectively. The Defendant filed a motion for new trial, which the trial court
denied. He then filed a timely notice of appeal.

                                      ANALYSIS

                            I. Failure to Declare a Mistrial

       Toward the conclusion of Mr. Jones’s testimony on direct examination by the
State, Mr. Jones became frustrated when asked to use a pointer to identify the location of
the events on maps and in photographs. He began using profanity and calling the
Defendant names such as “punk killer” and “[f]ake killing a** n***a.” Mr. Jones’s
behavior continued when questioned by defense counsel on cross-examination. Mr.
Jones and defense counsel argued, and Mr. Jones used profanity toward defense counsel
and the Defendant. On multiple occasions, the trial court instructed Mr. Jones to answer
defense counsel’s questions and instructed Mr. Jones and defense counsel to stop arguing
with each other. At one point, defense counsel requested a jury-out hearing, complaining
that Mr. Jones was “controlling the courtroom.” The trial court ordered a short recess
and instructed the prosecutor to speak to Mr. Jones about his conduct. When the trial
resumed, the trial court allowed co-counsel to take over the cross-examination of Mr.
Jones.

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       The Defendant contends that the trial court erred in failing to declare a mistrial due
to Mr. Jones’s behavior. The Defendant argues in the alternative that the trial court
should have stricken Mr. Jones’s testimony and instructed the jury to disregard his
outbursts. The State responds that the Defendant waived the issue by failing to move for
a mistrial at trial. We agree with the State that the Defendant waived this issue by failing
to request a mistrial at trial. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.”); see also State v. Stanhope, 476 S.W.3d 382, 397-98 (Tenn. Crim. App. 2013)
(“Failure to request a mistrial waives any further action by the trial court.”). The
Defendant also failed to request that Mr. Jones’s testimony be stricken or that the jury be
instructed to disregard Mr. Jones’s outbursts. Furthermore, the Defendant does not
request this court to address the issue under the doctrine of plain error. See State v.
Patterson, 538 S.W.3d 431, 436 (Tenn. 2017) (providing that “[a] defendant bears the
burden of persuading an appellate court that plain error entitles him to relief”).
Accordingly, the Defendant is not entitled to relief on this issue.

                                II. Exclusion of Evidence

        The Defendant next contends that the trial court erred in excluding the testimony
of Mr. Carlos Prather. According to the Defendant, Mr. Prather would have testified that
the victim agreed to carry out a “hit” on the Defendant. Mr. Prather testified during a
pretrial hearing, and the trial court took the matter under advisement. Following the
Defendant’s testimony at trial, the trial court found that Mr. Prather’s testimony was
hearsay and was not relevant in light of the Defendant’s testimony. However, the
transcript of the pretrial hearing during which Mr. Prather testified is not included in the
appellate record. The appellant has a duty to prepare a record that conveys “a fair,
accurate and complete account of what transpired with respect to those issues that are the
bases of appeal.” Tenn. R. App. P. 24(b). When the appellate record “does not contain a
transcript of the proceedings relevant to an issue presented for review, or portions of the
record upon which a party relies, this Court is precluded from considering the issue.”
State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1998) (citing State v.
Groseclose, 615 S.W.2d 142, 147 (Tenn. 1981); State v. Jones, 623 S.W.2d 129, 131
(Tenn. Crim. App. 1981)). “In the absence of an adequate record on appeal, we must
presume that the trial court’s ruling was supported by the evidence.” State v. Bibbs, 806
S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citations omitted). Accordingly, the
Defendant is not entitled to relief on this issue.




                                            -5-
                 III. Improper Statements During Closing Arguments

        The Defendant maintains that the prosecutor made improper comments during his
rebuttal closing argument. “Closing arguments serve to sharpen and to clarify the issues
that must be resolved in a criminal case” and enable “the opposing lawyers to present
their theory of the case and to point out the strengths and weaknesses in the evidence to
the jury.” State v. Hawkins, 519 S.W.3d 1, 47 (Tenn. 2017) (citations and quotations
omitted). Because counsel in criminal cases are “‘expected to be zealous advocates,’”
they are afforded “‘great latitude in both the style and the substance of their arguments.’”
Id. (quoting State v. Banks, 271 S.W.3d 90, 130-31 (Tenn. 2008)). Prosecutors, however,
“must not lose sight of their duty to seek justice impartially and their obligation ‘to see to
it that the defendant receives a fair trial.’” Id. at 47-48 (quoting Banks, 271 S.W.3d at
131). Accordingly, a “prosecutor’s closing argument must be temperate, must be based
on the evidence introduced at trial, and must be pertinent to the issues in the case.”
Banks, 271 S.W.3d at 131 (citations omitted). “[P]rosecutors, no less than defense
counsel, may use colorful and forceful language in their closing arguments, as long as
they do not stray from the evidence and the reasonable inferences to be drawn from the
evidence, or make derogatory remarks or appeal to the jurors’ prejudices.” Id. (citations
omitted).

        The Defendant first contends that the prosecutor improperly argued that according
to the Defendant, the victim reached down to get his gun. The Defendant maintains that
he never testified how the victim acquired the gun in his hand but stated that he did not
see the gun until the victim was raising it to shoot him. The Defendant objected, and the
trial court overruled the objection. However, the Defendant waived this issue by failing
to raise it in his motion for new trial. See Tenn. R. App. P. 3(e) (stating that “no issue
presented for review shall be predicated upon … misconduct of jurors, parties or counsel
… unless the same was specifically stated in a motion for new trial”); State v. Johnathan
Robert Leonard, No. M2016-00269-CCA-R3-CD, 2017 WL 1455093, at *6 (Tenn. Crim.
App. Apr. 24, 2017), perm. app. denied (Tenn. Aug. 16, 2017) (concluding that the
defendant did not properly preserve fifteen claims of improper statements in closing
arguments by failing to raise them in his motion for new trial). Moreover, the Defendant
does not argue plain error. Accordingly, the Defendant is not entitled to relief regarding
this issue.

        The Defendant also contends that the prosecutor’s reenactment of the shooting
was improper. The Defendant specifically argues that the reenactment “was based solely
on lay witness opinion, not substantiated by expert opinion, and recited facts that were
not testified to nor put into evidence.” The State responds that the Defendant waived this
issue by failing to object at trial and that, regardless, the Defendant is not entitled to
relief.
                                            -6-
       Our supreme court previously stated that the “[f]ailure to object to a prosecutor’s
statements during closing arguments results in waiver on appeal.” State v. Henretta, 325
S.W.3d 112, 125 (Tenn. 2010) (citations omitted). However, in State v. Hawkins, the
Tennessee Supreme Court applied plenary review, rather than plain error review, to two
allegations of improper prosecutorial closing argument when the defendant failed to
object at trial but raised the issues in his motion for new trial. 519 S.W.3d at 48. The
court applied plain error review to two other allegations of improper prosecutorial
argument when the defendant failed to both object at trial and raise the issues in his
motion for new trial. Id. at 49. In the present case, because the Defendant failed to
object and state the prosecutor’s actions on the record, the transcript is unclear what the
reenactment entailed. Thus, regardless of the review that we employ, we conclude that
the Defendant is not entitled to relief.

                                    CONCLUSION

       Upon reviewing the records, the parties’ briefs, and the applicable law, we affirm
the judgments of the trial court.



                                    ___________________________________________
                                    JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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