                                                                                       09/30/2019

       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                               March 20, 2019 Session

         STATE OF TENNESSEE v. GREGORY RANDALL SOUTH

                Appeal from the Criminal Court for Fentress County
                   No. 2017-CR-50 E. Shayne Sexton, Judge
                     ___________________________________

                          No. M2018-01360-CCA-R3-CD
                      ___________________________________


Following a jury trial, the defendant, Gregory Randall South, was convicted of two
counts of selling morphine, a Schedule II controlled substance. On appeal, the defendant
contends the prosecutor improperly commented on his right not to testify and used an
improper hypothetical during closing argument. Having thoroughly reviewed the record,
we conclude the prosecutor’s comments on the defendant’s right not to testify constitute
reversible non-structural constitutional error. Accordingly, we reverse the judgments of
the trial court and remand the matter for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed;
                                 Case Remanded

J. ROSS DYER, J., delivered the opinion of the court. NORMA MCGEE OGLE, J., filed a
concurring opinion, in which ROBERT W. WEDEMEYER, J., joined.

Emily E. Wright, Jamestown, Tennessee, for the appellant, Gregory Randall South.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Jared R. Effler, District Attorney General; and Philip Kazee,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

      This case arises from the defendant’s involvement in controlled buys conducted by
the Fentress County Sheriff’s Department on September 19 and September 20, 2016.
The defendant was indicted with two counts of selling morphine, a Schedule II controlled
substance, and two counts of delivering morphine. The following evidence was
presented at trial.

       In June of 2016, the Fentress County Sheriff’s Department began working with
confidential informant Debbie Lee on several controlled drug transactions. Ms. Lee was
paid for each controlled buy and received $200 for two transactions occurring on
September 19 and 20, 2016, and additional payments for other unrelated transactions.
Ms. Lee agreed to be a confidential informant because she was a recovering drug addict
and wanted to help rid Fentress County of drug trafficking. Although Ms. Lee was on
unsupervised probation at the time of the controlled buys, she denied receiving a
reduction in her sentence for her work as a confidential informant.

       On September 19, 2016, Ms. Lee’s girlfriend called the defendant and asked to
purchase two sixty-milligram morphine tablets. Once Ms. Lee confirmed the narcotics
were available, she met Detective Brian Franklin and Detective Lance Stephens, both
narcotics detectives with the Fentress County Sheriff’s Department, in preparation for the
transaction. Because he did not want to “get[] physical [with] a lady,” Detective
Stephens searched Ms. Lee by asking her to pull out her pockets and shake out her shirt.
He also searched Ms. Lee’s vehicle for money and illegal narcotics prior to the
transaction. Detective Franklin placed an electronic listening device on Ms. Lee that
allowed the detectives to monitor the transaction in real time. He also gave her a cell
phone, which was equipped with a video recording application. Before leaving for the
defendant’s home, Ms. Lee was given $80 to purchase the morphine pills.

       When Ms. Lee arrived at the defendant’s home, someone other than the defendant
answered the door. The defendant was standing in the kitchen and laid down two
morphine tablets on the kitchen island. Ms. Lee placed the $80 on the island and picked
up the morphine pills. She asked the defendant if he had anything to wrap the pills in and
was given a piece of cellophane. Ms. Lee then wrapped the pills in the cellophane and
placed them in her bra. As Ms. Lee was leaving, the defendant told her to come back the
next day because “he would have the hundred milligrams.”

        During the controlled buy, Detectives Franklin and Stephens parked their vehicle
within eyesight of the defendant’s house, and the detectives listened to the transaction
through the audio equipment. The State introduced both the audio and video recordings
of the transaction and played them for the jury at trial. Although there were several
voices on the audio recording, Detective Stephens, who was familiar with the defendant,
testified “one of the first voices [he] recognized” was the defendant’s.

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        After the transaction, Ms. Lee travelled to a prearranged location to meet
Detectives Franklin and Stephens. When she pulled into the parking lot, Ms. Lee gave
Detective Franklin the pills, and Detective Franklin placed them in an evidence bag.
Detective Stephens then searched Ms. Lee and her vehicle for money, weapons, and
illegal narcotics.

      On September 20, 2016, Ms. Lee’s girlfriend set up another drug buy with the
defendant, this time for a one-hundred-milligram morphine tablet. Ms. Lee again met
with Detectives Franklin and Stephens in preparation for the transaction. Detective
Stephens searched Ms. Lee and her vehicle, and Detective Franklin gave her $60 to
purchase the morphine. He also equipped her with a recording device and cell phone.

       When Ms. Lee arrived at the defendant’s home, she was again let in by someone
other than the defendant. The defendant was sitting on a couch in the living room and did
not get up during the transaction. Ms. Lee handed the defendant $60, and he gave her the
morphine pill.

       As before, Detectives Franklin and Stephens parked a short distance from the
defendant’s house and listened to the audio of the transaction as it occurred. The audio
and video recordings of this transaction were also introduced at trial. At the conclusion
of the transaction, Ms. Lee met the detectives at a predetermined location. Detective
Franklin took the pill from Ms. Lee and placed it in an evidence bag while Detective
Stephens searched Ms. Lee and her vehicle.

       Special Agent Erica Stone with the Tennessee Bureau of Investigation tested the
evidence collected from the September 19 and September 20, 2016, controlled buys for
the presence of narcotics. She identified the pills purchased on September 19 and
September 20, 2016, as morphine. However, she was unable to verify the milligram
amount of each pill because laboratory policy does not allow agents to “quantify a
substance.” The State entered the reports authored by Special Agent Stone into evidence.

      During cross-examination, Detective Stephens admitted he was unaware Ms. Lee
had convictions for theft and passing worthless checks or that she was on probation at the
time of the controlled buys. In addition, Detective Franklin admitted on cross-
examination that he was unaware Ms. Lee, prior to becoming a confidential informant,
was incarcerated for a probation violation because she failed to pay restitution on her
worthless check charges.

      After the State rested, the defendant moved for acquittal. The trial court dismissed
the two delivery charges but otherwise denied the motion. The defendant declined to
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present evidence. After completing deliberations, the jury found the defendant guilty of
the two remaining counts. Following a sentencing hearing, the trial court imposed an
effective sentence of nine years.

        The defendant filed a timely motion for new trial in which he argued, in part, the
trial court erred by allowing the State to present an improper hypothetical during rebuttal
closing argument and by allowing the State to improperly comment on the defendant’s
right not to testify. The defendant filed an affidavit in support of his claim that the
prosecutor improperly commented on his right not to testify, which described the
prosecutor’s voice and body language while delivering the comment. While the trial
court denied the defendant’s motion for new trial, the court did express concern over the
State’s closing argument as it related to the defendant’s right not to testify. Specifically,
the trial court noted,

       Now the third part, I’m troubled a little bit about that. The – it’s always
       dangerous when we get into an area where the State is daring a response
       from a defendant, and particularly a defendant who has not testified and
       offered no proof. That’s a – that is a very – first of all, it’s a very clear line,
       you can’t do that. But it’s also, you know, murky about what is a dare and
       what is a persuasive comment in closing.
       ...
       I – you know, we’ve had these discussions either in writing or in [c]ourt
       numerous times about where the State can go in closing argument when a
       defendant has not testified or not offered proof. It’s a very dangerous
       proposition to get into that, but in this particular case, I find that there is no
       – no showing that the outcome was affected by the State’s argument.

This timely appeal followed.

                                           Analysis

       On appeal, the defendant argues the prosecutor made improper comments during
rebuttal closing argument when he commented on the defendant’s right not to testify and
presented an improper hypothetical, asking the jury to put themselves in Ms. Lee’s shoes.
The State contends all issues are waived because the defendant’s motion for new trial
lacked specificity. The State also contends the defendant’s issues failed to meet the
standard for plain error review. Upon our thorough review of the record, we agree the
State improperly commented on the defendant’s right not to testify and reverse the
judgments of the trial court.

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       Initially, we must address the State’s contention that the defendant’s motion for
new trial lacked specificity. We note a motion for new trial should be viewed “in the
light most favorable to the appellant, and it should resolve any doubt as to whether the
issue and its grounds were specifically stated in favor of preserving the issue.” Fahey v.
Eldridge, 46 S.W. 3d 138, 143 (Tenn. 2001); State v. Danny Howard, No. W2012-02109-
CCA-R3CD, 2013 WL 6254679, at *7 (Tenn. Crim. App. Dec. 2, 2013), perm. app.
denied (May 15, 2014). After reviewing the defendant’s motion for new trial, we
conclude he properly preserved the issues raised in this appeal.

I.    Improper Hypothetical

       The defendant argues the prosecutor presented an improper hypothetical during
rebuttal closing argument when he asked the jurors to imagine being in Ms. Lee’s
position. The defendant argues this hypothetical inflamed the juror’s emotions and
affected the outcome of the trial. The State contends the hypothetical does not merit
reversal. We agree with the State.

      During rebuttal closing argument, the following exchange occurred:

      [PROSECUTOR]:                And you know, I thought about this last night.
      I’ve got a daughter. Can you imagine? I don’t care if you’re the worse
      (sic) criminal in the world. Can you imagine being a female and going into
      a drug home? Can you imagine that?

      [DEFENSE COUNSEL]: Objection, your Honor.                   He’s giving a
      hypothetical here to the jury.

      [PROSECUTOR]:               That --

      THE COURT:             Ladies and Gentlemen, again, this is argument.
      Anything that’s inconsistent with the proof you’re to disregard, however, I
      will permit that -- this argument to continue.

      [PROSECUTOR]:                Thank you, your Honor. This is proof. She’s a
      -- she’s an individual in a vehicle. She’s a female. She’s going in a home
      of a male drug dealer in Fentress County, Tennessee. She’s got audio on
      she testifies to. She’s got video on. She’s carrying a phone around. And
      she’s trying to get anything she can get, and she’s by herself. She doesn’t
      have a gun. She doesn’t have a weapon. She doesn’t know who’s in that
      house. She doesn’t know what weapons he may have. She’s got a video,
                                            -5-
       and she’s trying to get anything she can to just document that she’s telling
       the truth for once in her life, and that’s what that video does. The video is
       not the case, Debbie Lee is the case. The video is in addition. It’s
       documenting, it’s proving. It doesn’t lie. It’s telling you what she did. It
       shows her get out of the car. It shows her go in the house on the 19th and
       the 20th. It shows her wrapping up cellophane and putting pills in it. She
       asked for the cellophane. That’s all part of what she’s doing to get it
       documented so that somebody believes that what she is doing she’s doing.
       That’s the whole reason you do it. Can you imagine a female in there
       talking to a male? You’re -- you can’t walk in and go, hello [the
       defendant], can you count the drugs out for me? And I’m not filming you.
       I don’t want you to think I am. Can you imagine that, thinking that you’re
       gonna get caught?

       Closing arguments are an important tool during trial, so attorneys are given a
wide-range of autonomy when making them, and the trial court has a wide-range of
discretion when controlling them. 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). It is
possible for five general areas of prosecutorial misconduct to occur during closing
arguments:

       (1) intentionally misleading or misstating the evidence; (2) expressing a
       personal belief or opinion as to the truth or falsity of the evidence or
       defendant’s guilt; (3) making statements calculated to inflame the passions
       or prejudices of the jury; (4) injecting broader issues than the guilt or
       innocence of the accused; and (5) intentionally referring to or arguing facts
       outside the record that are not matters of common public knowledge.

Id. “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).

       Here, the defendant’s trial strategy was to challenge Ms. Lee’s credibility, and this
strategy continued into the defendant’s closing argument. The defendant specifically
attacked the quality of the video recordings from the transactions, arguing the videos do
not “show you [] [the defendant] with those pills in his hand. [They do not] show him
handing them to Ms. Lee. [They do not] show him exchanging money for pills.” When
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viewed in the context of closing argument, the prosecutor’s remarks during rebuttal
argument were in response to the defendant’s attack on both Ms. Lee’s credibility and the
quality of the videos she recorded while in the defendant’s house. See State v. Ashburn,
914 S.W.2d 108, 115 (Tenn. Crim. App. 1995) (“Argument that might otherwise be held
improper does not constitute error where it is in response to the argument of the
defendant.”).

       Furthermore, in response to the defendant’s objection, the trial court instructed the
jury to disregard any argument that was inconsistent with the proof, and the jury
instructions included a provision that the arguments of counsel are not evidence. We
presume the jurors follow those instructions. State v. Robinson, 146 S.W.3d 469, 494
(Tenn. 2004). The defendant is not entitled to relief on this issue.

II.    Defendant’s Right Not To Testify

        The defendant also argues the prosecutor, during rebuttal closing argument,
improperly commented on the defendant’s right not to testify. The State contends the
issue has been waived for failure to make a contemporaneous objection and argues plain
error review is not appropriate.

       Generally, the failure to preserve an issue for appeal results in waiver. Tenn. R.
App. P. 36(a). Moreover, by failing to make a contemporaneous objection, a defendant
waives appellate consideration of the issue. State v. Thompson, 36 S.W.3d 102, 108
(Tenn. Crim. App. 2000). However, although the defendant failed to make a
contemporaneous objection during trial, this issue was raised in the defendant’s motion
for new trial, and the trial court ruled on the issue. Thus, we elect to review this issue on
its merits.

       During rebuttal closing argument, the prosecutor made the following statements:

       Gregory South, why is Debbie Lee coming to your home? Have you asked
       yourself that question? Why -- why, Gregory South, why did she come to
       your home? Why was she good enough on September the 19th for you to
       allow her to come to your home? Why, Gregory South, did you open the
       door and let her in? Why, Gregory South, did you invite her into a (sic)
       home? Why, Gregory South, did you have a conversation with her? Why,
       Gregory South, did you sell her [m]orphine, schedule two drugs? Why did
       you tell her, there’s gonna be more [m]orphine drugs here tomorrow?
       Why, Gregory South, why, why, why, why did that happen.

                                            -7-
       September the 20th, 2016, why was Debbie Lee good enough? Why did
       Greg South allow her to come back to the home? Why, why, Gregory
       South, why did you open the door and let her in? She’s such a terrible
       person, she’s a -- she’s a criminal. You know, we have to almost turn from
       her. Why -- why did you do that? Why did you let her in the house? Why
       did you open the door for her? Why did you have a conversation with her?
       Why did you sell her more drugs[?]

         The Fifth Amendment to the United States Constitution provides that “[n]o person
. . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. Similarly, article I, section 9 of the Tennessee Constitution provides that “in
all criminal prosecutions, the accused . . . shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. Both provisions guarantee criminal defendants the
unfettered right to remain silent and not testify at trial. Carter v. Kentucky, 450 U.S. 288,
305 (1981). Both provisions further prevent the State from commenting on the accused’s
silence. Griffin v. California, 380 U.S. 609, 615 (1965); State v. Jackson, 444 S.W.3d
554, 586 (Tenn. 2014). It is possible, however, for the State to describe the proof as
uncontradicted or make other indirect references to the defendant’s silence without
infringing on the defendant’s Fifth Amendment rights, so long as the defendant is not the
only person who could offer the contradictory proof. Jackson, 444 S.W.3d at 586-87
(internal citation omitted).

      This Court reviews the propriety of prosecutorial comments regarding the right to
remain silent under a de novo standard and applies the following two-prong test:

       (1) whether the prosecutor’s manifest intent was to comment on [the]
       [d]efendant’s right not to testify; or (2) whether the prosecutor’s remark
       was of such a character that the jury would necessarily have taken it to be a
       comment on [the] [d]efendant’s decision not to testify.

Jackson, 444 S.W.3d at 588.

       A non-structural constitutional error does not require automatic reversal.
Chapman v. California, 386 U.S. 18, 24 (1967); Jackson, 444 S.W.3d at 590-91.
However, the burden is on the State to demonstrate the error is harmless beyond a
reasonable doubt. Jackson, 444 S.W.3d at 591. In determining whether the State has met
this burden, we consider “(1) whether the remarks were isolated or extensive; (2) whether
the remarks ‘came at a critically important juncture in the trial’; (3) the prosecutor’s
verbal and physical delivery of the remarks; (4) what curative instructions were given and
when; and (5) whether the evidence of the defendant’s guilt was otherwise
                                            -8-
overwhelming.” State v. Colvett, 481 S.W.3d 172, 208 (Tenn. Crim. App. 2014) (quoting
Jackson, 444 S.W.3d at 592).

       Initially, we note again that the trial court, while ultimately denying the
defendant’s motion for new trial, expressed concern about the State’s closing argument.
After reviewing the allegedly improper comments made by the prosecutor, we too are
concerned. However, unlike the trial court, we conclude the prosecutor’s remarks are of
such a character that the jury would necessarily have taken it to be a comment on the
defendant’s failure to testify, regardless of the prosecutor’s intent. In Jackson, our
supreme court overturned a second degree murder conviction where the prosecutor stood
in front of the defendant during rebuttal closing argument, “gestured toward her, and
demanded in a loud voice, ‘Just tell us where you were! That’s all we are asking,
Noura!’” Jackson, 444 S.W.3d at 589. Here, the prosecutor also referred to the
defendant by name. However, instead of one statement, the prosecutor in this case
directed eighteen questions at the defendant, imploring him to explain his actions. Like
the comment in Jackson, the prosecutor’s comment came during rebuttal closing
argument, depriving the defendant of the opportunity to respond. Additionally, the
defendant’s affidavit indicates the prosecutor pointed at the defendant, “rais[ed] his
voice, turned toward [the defendant], and look[ed] at [the defendant]” while asking the
questions. At the hearing on the motion for new trial, the trial court agreed, asking if
“there [was] any question about that? I was here that day.”

        The defendant did not request any curative instructions and none were given.
However, the trial court did instruct the jury that the arguments of counsel were not
evidence and the jury was to “place no significance on” the defendant’s decision not to
testify. Finally, although the evidence in this case was sufficient to support the
defendant’s convictions, it was not overwhelming. Although the State contends the
prosecutor’s comments were in response to the defendant’s attack on Ms. Lee’s
credibility, we are not persuaded by this argument. The prosecutor’s comments
implicitly invited the jury to consider the defendant’s silence and to question why he
refused to testify on his own behalf.

       Under these circumstances, the State has failed to prove the prosecutor’s
unconstitutional comments were harmless beyond a reasonable doubt. We, therefore,
reverse the defendant’s convictions and remand for a new trial.

                                       Conclusion

       Based on the foregoing authorities and reasoning, the judgment of the trial court is
reversed and the matter is remanded for a new trial
                                           -9-
  ____________________________________
  J. ROSS DYER, JUDGE




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