                                                                                            02/23/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               September 6, 2017 Session

              STATE OF TENNESSEE v. TIMOTHY MCKINNEY

                  Appeal from the Criminal Court for Shelby County
                   No. 14-03457       James C. Beasley, Jr., Judge
                      ___________________________________

                            No. W2016-00834-CCA-R3-CD
                        ___________________________________


THOMAS T. WOODALL, P.J., dissenting.

        I respectfully dissent. It is clear that the State committed prosecutorial error three
times during closing arguments: (1) argument regarding “adequate provocation,” (2)
argument regarding a hypothetical of the victim dying, and in so doing misstated the law,
and (3) arguments that vouched as to the truth of State witnesses: (a) the victim, (b)
Renardo Hibbler, (c) Javier McKissick, and (d) the police officers who worked the case.
All of the improper arguments are set forth in the majority opinion.

       These arguments violated factors 1, 2, and 3 of State v. Goltz, 111 S.W.3d 1, 6
(Tenn. Crim. App. 2003). The Tennessee Rules of Appellate Procedure were adopted in
1979. Tenn. R. App. P. 36(b) provides in part that if errors result in prejudice to the
judicial process, after considering the record as a whole, the judgment may be set aside.

       This court repeatedly sees erroneous closing arguments by the State. It seems
almost amazing, that statewide, improper closing arguments continue to be made over
and over again. There is no good excuse for such errors. Repeated findings of “harmless
error” after concluding that error occurred have apparently not worked to curtail
erroneous arguments. Thus, I conclude that the convictions should be reversed and the
cases remanded for a new trial.

       I also take the opportunity to state that the description of a prosecutor’s error as
“unprofessional conduct” should be reexamined. After all, appellate courts in Tennessee,
to my knowledge, have not described a trial judge’s error as “unprofessional conduct,”
“judicial misconduct” or other words of similar description. Also, describing a
prosecutor’s erroneous arguments as unprofessional conduct can be seen by some to raise
the bar on what is reversible error. That is, some might conclude that only arguments
which are so egregious to justify extra-judicial action by the Board of Professional
Conduct of the Supreme Court of Tennessee can justify granting relief to a defendant.
Considerations of unprofessional conduct should be the sole responsibility of the Board
of Professional Responsibility. Consideration of whether erroneous arguments are made
during a trial, and the disposition of the case if there is error, should be made by the
appellate court addressing the appeal.


                                 ____________________________________________
                                 THOMAS T. WOODALL, PRESIDING JUDGE




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