        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  July 10, 2012 Session

                 STATE OF TENNESSEE v. BRENDA WOODS

                 Appeal from the Circuit Court for Hardeman County
                   No. 2010-CR-95      J. Weber McCraw, Judge


              No. W2011-02366-CCA-R3-CD - Filed December 13, 2012


The defendant, Brenda Woods, was convicted by a Hardeman County jury of three counts
of procuring an illegal vote, a Class E felony, and was sentenced by the trial court to
concurrent terms of two years for each offense, with credit given for one day’s jail service
and the remainder of the time on supervised probation. The defendant was also disqualified
from holding public office for the duration of her sentence pursuant to Tennessee Code
Annotated section 40-20-114(a). She raises the following four issues on appeal: (1) whether
the prosecutor engaged in misconduct that deprived her of a fundamentally fair trial; (2)
whether the trial court erred by overruling her Batson challenge to the prosecutor’s exercise
of a peremptory challenge; (3) whether the evidence is sufficient to sustain her convictions;
and (4) whether the trial court erred by allowing testimony from an investigator about his
telephone conversations with her. Following our review, we reverse and remand for a new
trial.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed
                          and Remanded for New Trial

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

C. Michael Robbins, Covington, Tennessee (on appeal); and David A. Stowers and Daryl
Gray, Bolivar, Tennessee (at trial), for the appellant, Brenda Woods.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Bob Gray, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION
                                             FACTS

       This case arises out of the defendant’s role in assisting disqualified voters to vote in
the May 2009 Bolivar Municipal Election, in which the defendant was an unsuccessful
mayoral candidate and successful candidate for city council. Following the election, the
Hardeman County Administrator of Elections received a list of convicted felons, cross-
referenced it against her list of voters, and discovered that several individuals with felony
records, including Yolanda Giles, Taletha McNeal Traylor, and Amos Watkins, had
registered to vote and voted illegally in the early voting of the 2009 election. An
investigation ensued that resulted in those three voters being indicted for illegal voting and
the defendant’s being indicted for three counts of procuring an illegal vote and one count of
procurement or inducement of false swearing on a voter registration form. The last count,
however, was not brought before the jury and was subsequently dismissed.

                                          State’s Proof

        At trial, Amber Moore, Administrator of Elections for Hardeman County since 2005,
described the responsibilities and duties of her office, which includes processing voter
registration applications and executing elections. She said that an individual registers to vote
by filling out and signing an application to register to vote, which requires him or her to state
his or her name, social security number, and date and place of birth and to answer a series
of questions, including whether he or she has ever been convicted of a felony. Once the
application is approved, the individual is mailed a voter registration card that allows him or
her to vote in the next election, provided the application was approved thirty days before the
election.

       Moore testified that convicted felons are disqualified from voting unless they have had
their voting rights restored. She said she regularly picks up copies of convictions from the
Hardeman County Circuit Court Clerk’s Office and enters them into her computer software
system. If her records show that a convicted felon is a registered voter, her office purges the
individual from the registered voter list and sends the voter a letter stating that he or she has
been purged due to the felony conviction, along with information on the procedure for
restoring voting rights. Moore acknowledged that it was not a perfect system and that there
were some instances in which individuals with felony convictions “slip[ped] through” and
remained on the voter registration list despite their felony convictions. She said she relied
not only on the record of convictions from the court clerk’s office, but also on the individual
voters to be truthful about their felony convictions.

        Moore explained the procedure required for convicted felons to have their voting
rights restored, testifying that individuals are required to take a certificate of restoration form

                                                -2-
provided by her office to the circuit court clerk of the court in which the conviction occurred
and to their probation officers for those parties to fill out the appropriate portions of the form.
When the form is completed with the appropriate signatures, the individual returns the form
to Moore’s office and she sends it to the Coordinator of Elections of the Secretary of State’s
Office. Moore stated that an individual’s voting rights would not be restored until she
received a return letter from the State of Tennessee approving the restoration.

        Moore testified that she was very familiar with the defendant, who had been a
candidate “in some capacity” in nearly every election since Moore had been Administrator
of Elections in Hardeman County. The defendant had picked up both voter application and
certificate of restoration forms from Moore’s office and had been “active in the political
process” by assisting voters in registering to vote or in filling out their restoration forms and
by picking up voters in a van and bringing them to the polls. The defendant also frequently
called Moore’s office to determine the registration status of voters or to ask if particular
individuals had voted yet.

        Moore testified that after the May 19, 2009 Bolivar Municipal Election, she received
a list of convicted felons from the Department of Correction, checked it against the list of
individuals who had voted in that election, and learned that several individuals with felony
convictions whose voting rights had not been restored had voted illegally during the early
voting period for the election. Among these were Yolanda Giles, who had been convicted
of delivery of less than .5 grams of cocaine, a Class C felony, on April 18, 1997, and who
registered to vote on January 28, 2009; Taletha McNeal Traylor, who had been convicted of
two counts of forgery, a Class E felony, on October 12, 1995, and who registered to vote on
May 17, 2006; and Amos Watkins, who had been convicted of aggravated assault, a Class
D felony, on June 8, 2001, and who registered to vote on April 15, 1997, and again on May
1, 2009, because his address had changed. After receiving the information, Moore purged
their names from the voting list and sent them notices of the purging along with restoration
applications. She also referred their names to the district attorney for investigation and
prosecution.

       On cross-examination, Moore acknowledged that, at the time of the May 2009
election, all three of the above individuals were eligible to vote according to her office’s
records.

       Linda Fulghum, the Circuit Court Clerk for Hardeman County, identified the certified
copies of the judgments of conviction for Yolanda Giles, Taletha Traylor, and Amos
Watkins. Her Deputy Court Clerk, Rhonda Sipes, estimated that over the years she had
encountered the defendant approximately ten times in the clerk’s office as the defendant
sought to get different individuals’ voting rights restored. She said the defendant sometimes

                                                -3-
accompanied the individuals who were trying to have their rights restored and sometimes
came to the office alone. For her part, Sipes checked to ensure that the individuals in
question had fulfilled their fine and restitution obligations and then filled out the court clerk’s
portion of the form, signed as an officer of the court, and returned the form to either the
defendant or the individual with instructions to take it to the state probation officer for him
to fill in his portion and sign off on the form.

        Yolanda Giles, a distant relative and casual acquaintance of the defendant, testified
that she filled out her application to vote, checking “no” to the question of whether she had
ever been convicted of a felony, because she needed proof of residence to obtain her driver’s
license. She knew at the time she filled out the application that her felony conviction
prevented her from voting, but she had no intention of participating in the voting process at
that time.

        Giles further testified that sometime before the May 2009 Bolivar Municipal Election,
she mentioned to the defendant that she could not vote because of her felony record. She
said the defendant told her that she could have her voting rights restored by completing some
paperwork. Giles testified that she replied to the defendant that she had heard about that
process briefly in church but had not gotten any details. She said she did not tell the
defendant that she had not applied to have her voting rights restored, and the defendant never
specifically questioned her about it.

       Later, the defendant stopped by her home while campaigning for the May 2009
municipal election. The defendant reminded her that it was early voting and that she should
vote, and she replied that she had lost her voter registration card. The defendant responded
that she would get her a new voter card, that the card should arrive within a certain number
of days, and that if it did not, Giles should call to let her know. Three or four days later,
Giles received her new voter registration card in the mail.

       Giles testified that the defendant called her to make sure that she had received her new
voter registration card and then returned to her house in a church van driven by Larry
McKinnie to give her a ride to the Election Commission to vote. Giles said that she and the
defendant had no discussions that day about her felony record or whether she had had her
voting rights restored. She then explained that she assumed it was lawful for her to vote
because the defendant had come to her house to campaign after their conversation about her
felony record. She testified:

               Well, they came by campaigning and the conversation, like I said, I had
       heard briefly in church about felons being able to vote, I didn’t get all the
       details there but when I was talking to [the defendant] she did mention that and

                                                -4-
       I figured, okay, well, I didn’t have any need to question her because I figured
       [the defendant] knew what she was talking about.

       Giles also testified on direct examination that she was facing criminal charges in
connection with voting in the May 2009 election and that she had not been promised anything
by the State in exchange for her testimony.

        Amos Watkins testified that he had known the defendant, who was a friend of his
sisters, for his entire life. Sometime before the May 2009 election, the defendant came by
his aunt’s home in a church van driven by Larry McKinnie. The defendant was campaigning
and asked Watkins if he would go vote for her. Watkins said he told the defendant that he
“didn’t know if [he] could vote or not, [if he] had a felony or not.” He stated that the
defendant went back to the van, picked up a telephone, and, five or ten minutes later,
returned to him and said, “Come on. You can vote.” He, therefore, got on the van and “went
and voted.”

       Watkins further testified that he did not realize that his aggravated assault conviction
prevented him from lawfully voting. He said he had been charged with illegal voting, that
the charges were still pending against him, and that he had not been promised anything in
exchange for his testimony. On cross-examination, he said he did not even know he had a
felony conviction until he was arrested for illegally voting in the 2009 election; had he
known he had a felony, he “wouldn’t never have voted.”

        Debbie Jones, who was dating Amos Watkins at the time of the May 2009 election,
testified that the defendant, who was her cousin, came by her home while campaigning to ask
for her vote. She said that when she told the defendant that she could not vote because she
was a felon, the defendant asked her where Watkins was. She replied that he was probably
at his aunt’s house but that she did not know if he could vote because he also had a felony.
According to Jones, the defendant responded that she would “look into it.”

       On cross-examination, Jones denied that she was angry at the defendant because she
had stopped her practice of raising funds to help pay Jones’s utility bill. She acknowledged
that she had pled guilty to making a false report but insisted that her guilty plea conviction
for passing worthless checks was actually for writing bad checks, not passing them.

       Taletha McNeal Traylor, who said she was a distant relative and acquaintance of the
defendant, testified that she filled out her voter registration application in May 2006,
checking “no” to the question of whether she had ever been convicted of a felony, strictly for
“identification verification”; she had no intention of voting at that time. She stated that
during the first week of May 2009 she was sitting on the front porch of her neighbor’s house

                                              -5-
with four or five other people listening to music and drinking beer when the defendant and
McKinnie, who was driving a church van, pulled up in front of the house campaigning for
votes. Traylor stated that the defendant told the assembled group that it was early voting and
that she wanted them to come vote. Traylor said when she answered that she was a felon,
the defendant replied, “Well, come on. I’m taking you anyway. Y’all, let’s go vote.”
According to Traylor, the defendant also told her and her friends that they could bring their
beer with them. She said that she and her companions therefore got on the van with their
alcohol and went and voted. Traylor testified that she was currently facing charges for illegal
voting and that the State had not promised her anything in exchange for her testimony.

        Tennessee Bureau of Investigation Special Agent David Harmon of Memphis, who
was called in by the district attorney to conduct an independent investigation of the case,
testified that he telephoned the defendant on March 3, 2010, in an attempt to arrange an
interview with her. During that conversation, the defendant told him that she had been
“fighting 400 years of oppression in Hardeman County,” that his investigation was “a bunch
of bullshit,” and that the “D.A. Mighty Mouse was running around trying to ruin her.” The
defendant also stated that Agent Harmon “knew what this was all about” and that she would
“give [him] a statement when the Sheriff’s daughter, Diane Hicks, Michael Miller’s sister,
and Monroe Woods were indicted for voter fraud.” Agent Harmon testified that the
defendant told him that those three people voted illegally in Hardeman County, accused him
of being “a little rusty on [his] election law,” and hung up on him.

       Agent Harmon testified that he called the defendant back on March 11, telling her
again that he needed to interview her about the voter fraud complaint he was investigating.
He said that the defendant stated that the investigation was “bullshit,” that “this incident was
going to be like the Rosa Parks but bigger,” and that she was “going to put Hardeman County
on the map and everyone would know what was going on.” Agent Harmon testified that the
defendant ended with “bring on with what you got,” before once again hanging up on him.

                                     Defendant’s Proof

       Larry McKinnie, a retired Tennessee state trooper and former boyfriend of the
defendant, testified that during the two weeks of early voting for the May 2009 Bolivar
Municipal Election, he drove the defendant through neighborhoods campaigning and
canvassing for people to pick up and take to early voting. He said the defendant asked the
individuals they encountered if they were registered to vote and if they would be willing to
come along to participate in early voting. He stated that if anyone said he had a felony, they
did not take him to vote. Instead, the defendant, who was more familiar with the process
than he, would explain to the person the procedure for getting his or her voting rights
restored. McKinnie also stated that he never allowed anyone with alcohol on the van or

                                              -6-
anyone who appeared intoxicated to vote. Finally, he testified that Agent Harmon, when
interviewing him, asked,“I’m just curious of why they’re after [the defendant].” He said he
replied that it was because the defendant was an advocate for the people and that when one
stands up, “people want to knock you down.”

        Pamela Turner testified that on the day she voted during the early voting period of the
May 2009 Bolivar Municipal Election, she saw Amos Watkins and Debbie Jones parked in
the Dollar General store parking lot across the street from the voting precinct. She said that
Jones told her they were there because Watkins was going to vote but that she could not vote
because she had a felony. According to Turner, Watkins said he had a felony too, but he was
going to vote anyway because “what they don’t know won’t hurt them.” Turner further
testified that Jones had told her in the hallway outside the courtroom that she and Watkins
were being paid for their testimony and that when they went to court, they would not have
to worry because they were going to get probation. On cross-examination, Turner
acknowledged that she did not see Watkins vote.

       Gwendolyn Sue Brown, a friend of the defendant, testified that she campaigned with
the defendant every day during the early voting period of the 2009 election and never saw
Amos Watkins or Yolanda Giles on the van. She saw Taletha Traylor on the van, but she did
not have any alcohol with her and did not appear to be intoxicated. On cross-examination,
Brown denied having told Agent Harmon that the election she had worked with the defendant
and Larry McKinnie was the 2008 presidential election.

      Teresa Golden, the defendant’s cousin, testified that she was a candidate for a city
council position in the 2009 Bolivar Municipal Election and campaigned with the defendant
and never heard her tell anyone that it was all right to vote if he or she was a felon.

        Kenneth Kowen testified that he and the defendant were adversaries in the 2009
Bolivar mayoral race. He said their paths crossed several times while they were
campaigning, and he never overheard her tell anyone that it was all right to vote with a
felony. He stated that after the election, he, McKinnie, and the defendant discovered “at least
a dozen instances of irregularities” in the voter list for the election, including a deceased
voter and several other voters who were dementia patients in assisted care facilities. He
testified that he first went to the district attorney with his concerns but that he was
unresponsive so he wrote a letter to Attorney General Eric Holder. On cross-examination,
he testified that the Department of Justice had not yet responded to his complaint.

     The defendant testified that she had done “many wonderful things” for the
community, including registering hundreds of people to vote, restoring the voting rights of
numerous felons, and transporting hundreds of disenfranchised voters to the polls each

                                              -7-
election. She said that she “one hundred percent” knew the process for restoring a felon’s
right to vote and always carried certificates of restoration with her while campaigning. If an
individual she encountered told her that he had a felony, she would ask if his fines and
restitution were paid and if he had completed his probation. If he responded in the
affirmative, she would immediately fill out a certificate of restoration for him and then take
it to either the court clerk’s office or the state probation office for completion.

        The defendant testified that she did not register Amos Watkins, Taletha Traylor, or
Yolanda Giles to vote and never picked up Amos Watkins or Yolanda Giles to take to the
polls. She took Taletha Traylor to the polls for the 2009 election, but they never had any
conversation about Traylor’s criminal record and she had no idea that she had a felony
conviction. She did not see Traylor or anyone else with alcohol on the van. Furthermore,
as a teetotaler whose strong views about alcohol were well-known, she “certainly wouldn’t
allow anybody . . . that was drunk go to the polls and vote.”

       On cross-examination, the defendant asserted that it was Moore’s job, not hers, to
purge disqualified voters from the registered voter list and complained that Moore had
“failed the system” by allowing convicted felons to vote in the election. The defendant
described herself as “an activist in [the] community” and a “hero” to the disenfranchised
people of the county. She said she knew election law better than the Tennessee Bureau of
Investigation agent who had attempted to interview her and claimed that she had “never
violated any election laws, none.” However, she then acknowledged that she had, at times,
violated the distance regulation by campaigning too close to the polls. She testified that she
had contacted the Tennessee Bureau of Investigation, the Federal Bureau of Investigation,
and the district attorney numerous times to complain about voter fraud in various Hardeman
County elections but that the system was so corrupt that no one ever listened to her concerns.
Finally, she claimed that the witnesses against her were lying and that she was the victim of
selective prosecution by the district attorney.

                                        ANALYSIS

                               I. Prosecutorial Misconduct

        The defendant contends that the prosecutor engaged in misconduct by assuring the
trial court and defense counsel that there were no promises of immunity to the main
prosecution witnesses, eliciting testimony from each witness that he or she was still facing
prosecution in his or her voter fraud case, and arguing in closing that there were no
agreements between those witnesses and the State when, in fact, an “obscure” immunity
statute prohibited the State from prosecuting the voter fraud cases following the witnesses’
testimony in the defendant’s trial. The defendant argues that the prosecutor’s statements

                                             -8-
constituted “half-truths” that bolstered the credibility of the prosecution’s witnesses by
implying that they had nothing to gain from their testimony. Under the facts of this case, in
which the credibility of these witnesses was crucial to the jury’s findings of guilt, we agree
with the defendant that the testimony elicited by the prosecutor and argued to the jury at
closing was sufficiently misleading as to deprive the defendant of her due process rights to
a fair trial.

        In addition to eliciting testimony on direct examination from each disqualified voter
that he or she was still facing criminal charges and had not been promised anything in
exchange for his or her testimony, the district attorney and assistant district attorney made
the following statements during their closing arguments to the jury:

               Each and every one of those witnesses told you from that witness stand
       that there was no agreement with the State of Tennessee regarding the charges
       that were filed against them for casting those illegal votes. Each and every one
       of them still face those criminal charges. They are under felony indictment.
       Their case is set for, I believe, the January term for disposition. No promises.
       That’s what they said.

              ....

       And by her actions on May 1, May 6 and May 8 of 2009, she helped those
       convicted felons, those disqualified voters, she helped them violate the very
       fundamental and principles of democracy. She victimized them. They’re
       facing criminal charges now, again, and she violated the peace and dignity of
       the State of Tennessee.

      On the date of the defendant’s sentencing, judgments were entered for Giles, Traylor,
and Watkins showing that all charges against them had been dismissed “pursuant to TCA §
2-19-137.” The defendant bases her prosecutorial misconduct argument on the fact that the
prosecutors, throughout the trial, were apparently aware of that statute, which reads:

              2-19-137. Violators as witnesses–Exemption from prosecution.–A
       person offending against any of the provisions of this chapter shall be a
       competent witness against any other person violating any provisions of this
       chapter, and may be compelled to attend and testify upon any trial, hearing,
       proceeding, or investigation in the same manner as any other person, but the
       testimony so given shall not be used in any prosecution or proceeding, civil or
       criminal, against the person so testifying, except for perjury in giving such
       testimony, and a person so testifying shall not thereafter be liable to

                                             -9-
       indictment, prosecution, or punishment for the offense with reference to which
       such testimony was given, and may plead or prove the giving of such testimony
       accordingly in bar of such an indictment or prosecution.

Tenn. Code Ann. § 2-19-137 (2003) (emphasis added).

        We agree with the defendant that the plain language of the above statute provides that
Giles, Traylor, and Watkins could not have been prosecuted on their illegal voting charges
following their testimony in the defendant’s trial. We also agree with the State that the
information conveyed to the jury through the prosecutor – that the witnesses were still facing
charges at the time of the defendant’s trial and had not been promised anything in exchange
for their testimony – was technically true because the dismissal of the charges against these
witnesses occurred pursuant to statute rather than as the result of any immunity agreement,
formal or informal, conveyed by the State. However, while true, the information was
misleading because it implied that the witnesses had no personal motives for testifying at the
defendant’s trial other than to tell the truth.

        At the hearing on the motion for new trial, the district attorney said that everything he
and the assistant district attorney said at the defendant’s trial was true and that nothing was
hidden from the defendant because the immunity statute was “right there for [defense
counsel] to read and interpret and know.” He also pointed out that defense counsel had
ample opportunity to cross-examine the witnesses about their knowledge of the immunity
statute or to argue it in closing, and he said that defense counsel was ineffective for failing
to do so.

        We are not suggesting that the prosecutor had any duty to direct defense counsel’s
attention to the immunity statute, which is located in the same chapter on “Prohibited
Practices” as the offenses for which the defendant was on trial. The prosecutor did, however,
have a duty not to intentionally elicit testimony that was misleading to the jury. The
prosecutor also had a duty not to use that misleading information in closing argument in an
attempt to bolster the credibility of its witnesses. “That a statement standing alone is
factually correct obviously does not mean that it cannot mislead based on the natural and
reasonable inferences it invites.” Jenkins v. Artuz, 294 F.3d 284, 294 (2d Cir. 2002)
(concluding that prosecutor’s attempt to bolster credibility of government witness by
accurately pointing out to the jury that the witness never made a deal with her, without also
telling the jury that the witness had made a plea agreement with a different prosecutor,
violated the defendant’s due process rights). Furthermore, this court has previously observed
that a defendant’s due process rights may be violated even when defense counsel is aware
of false or misleading information if the prosecutor “‘capitaliz[es] on it in closing argument
or by posing misleading questions to the witnesses.’” State v. Kevin Douglas Davis, No.

                                              -10-
M2000-00017-CCA-R3-CD, 2001 WL 741930, at *7 (Tenn. Crim. App. July 3, 2001)
(quoting Mills v. Scully, 826 F.2d 1192, 1195 (2d Cir. 1987)). Because this was a close case
that turned on witness credibility, we conclude that the defendant’s due process rights to a
fair trial were violated by the prosecutor’s having intentionally elicited misleading
information and argued that misleading information to the jury in closing. We, therefore,
reverse the defendant’s convictions and remand for a new trial.

      Although we have determined that the defendant is entitled to a reversal of her
convictions and a new trial, we will, given the possibility of further appellate review, also
address the defendant’s other issues.

                                     II. Jury Selection

        The defendant contends that the trial court committed reversible error by overruling
her Batson challenge to the prosecutor’s exercise of a peremptory challenge to strike an
African-American female venire member from her jury. The State argues that the trial court
did not abuse its discretion in overruling the defendant’s challenge because the record shows
that the State provided a non-discriminatory reason for the use of its peremptory challenge.
We agree with the State.

       In Batson v. Kentucky, 476 U.S. 79 (1986), and cases that followed, the United States
Supreme Court set out the procedure by which a trial court is to evaluate claims of racial or
sexual discrimination in the jury selection process. To raise a Batson claim, the defendant
must first make a prima facie showing of purposeful discrimination against a venire member.
Batson, 476 U.S. at 93-94. This may be done by showing that the totality of relevant facts,
considered together, raises an inference of purposeful discrimination: “This showing may
include proof of systemic exclusion, substantial underrepresentation on the venire, or the
selection methods and results solely in the present case.” Woodson v. Porter Brown
Limestone Co., Inc., 916 S.W.2d 896, 902 (Tenn. 1996) (citing Batson, 476 U.S. at 95).

        Once the defendant has established a prima facie case of discrimination, the burden
of production then shifts to the State to offer a race-neutral explanation for the exercise of
its peremptory challenge. Batson, 476 U.S. at 97; Purkett v. Elem, 514 U.S. 765, 767 (1995).
This explanation “must be based on something more than stereotypical assumptions, but it
need not rise to the level required to justify the exercise of a challenge for cause.” State v.
Ellison, 841 S.W.2d 824, 826 (Tenn. 1992) (citing Batson, 476 U.S. at 97). The race-neutral
explanation need not be “persuasive, or even plausible.” Purkett, 514 U.S. at 768. If there
is no discriminatory intent inherent in the explanation, it will be deemed race-neutral. Id.
(citation omitted).



                                             -11-
       Finally, the trial court must consider the totality of the circumstances to determine if
the race-neutral explanation offered by the State is actually a pretext for purposeful
discrimination. Batson, 476 U.S. at 97-98. “Because the core issue is the prosecutor’s
discriminatory intent, or lack thereof, the trial court’s finding ‘largely will turn on evaluation
of credibility.’” Ellison, 841 S.W.2d at 827 (quoting Batson, 476 U.S. at 98 n.21). The best
evidence of discriminatory intent “‘often will be the demeanor of the attorney who exercises
the challenge.’” Id. (quoting Hernandez v. New York, 500 U.S. 352, 365 (1991)). “[T]he
ultimate burden of persuasion regarding racial motivation rests with, and never shifts from,
the opponent of the strike.” Purkett, 514 U.S. at 768.

       In its determination of whether a peremptory challenge has been exercised on
discriminatory grounds, the trial court “‘must carefully articulate specific reasons for each
finding on the record, i.e., whether a prima facie case has been established; whether a neutral
explanation has been given; and whether the totality of the circumstances support a finding
of purposeful discrimination.’” State v. Hugueley, 185 S.W.3d 356, 369 (Tenn. 2006)
(quoting Woodson, 916 S.W.2d at 906). The trial court’s findings are entitled to great weight
and will not be set aside on appeal unless found to be clearly erroneous. Woodson, 916
S.W.2d at 906; State v. Carroll, 34 S.W.3d 317, 319 (Tenn. Crim. App. 2000).

        The defendant raised her second Batson challenge after the State exercised a
peremptory challenge to strike a female African-American venire member. Defense counsel
stated, without objection from the State, that the prospective juror was the third female
African-American in a row struck by the State.1 The trial court found that the defendant had
made out her prima facie case of discrimination and asked the State to offer its race neutral
reason for the exercise of the challenge. The prosecutor replied that an officer had observed
that the prospective juror, upon entering the courtroom, had greeted the defendant in a
“friendly,” “familiar,” and “jovial” manner. The prosecutor also stated that the prospective
juror was the only person that the defendant spoke to and that the prospective juror’s
demeanor appeared to change when he questioned her about her ability to be fair and
impartial.

      The trial court accepted the race-neutral explanation and overruled the defendant’s
Batson challenge. In its ruling, the trial judge observed that the prospective juror having
engaged in conversation with the defendant, which showed some kind of relationship
between the two, combined with his notes indicating that she said she worked with the
defendant’s daughter and knew the defendant’s father, provided a sufficient race-neutral


        1
         The trial court overruled the defendant’s first Batson challenge after accepting the State’s proffered
race-neutral explanation that the venire member’s son had been tried in the previous court term for voter
fraud.

                                                     -12-
basis for the prosecutor’s challenge. The trial court’s ruling states in pertinent part:

               I’m not going to get the officer up here. The Court does find that the
       State is entitled to certain challenges. Again, as I made notes on several of
       these, it’s a very small town, people know each other but [the prospective
       juror] indicated she worked with [the defendant’s] daughter, that she knew [the
       defendant’s] father, and apparently not only a relationship with those two, but
       apparently she has a relationship with [the defendant] so that there was
       apparently conversation in the courtroom today. Again, we’re trying to get
       impartial jurors. A familiarity with the daughter, the father, and [the
       defendant] certainly raises an issue of whether or not she could set those aside
       and be fair. The Court finds that based on those relationships, that those are
       legitimate reasons for a challenge.

        The defendant correctly points out that the trial court apparently confused the
prospective juror with another venire member who was excused for cause after answering
that she worked with the defendant’s daughter and knew the defendant’s father and did not
think she could be fair in her deliberations. We disagree, however, with the defendant’s
assertion that the “alleged friendly and jovial conversation” between herself and the
prospective juror “played only a bit part in the trial court’s ruling” or that the trial court’s
mistake regarding the prospective juror’s relationships with the defendant’s family members
rendered its decision erroneous. Clearly, the trial court based its ruling not only on its
erroneous belief that the prospective juror knew the defendant’s father and worked with the
defendant’s daughter, but also on the fact that the prospective juror demonstrated a close
enough personal relationship with the defendant to give her a friendly greeting and engage
her in conversation.

       At the hearing on the motion for new trial, the prospective juror adamantly denied that
she greeted the defendant in a friendly way or spoke to her in the courtroom. She also said
that she did not personally know the defendant, had never worked with the defendant’s
daughter, and knew the defendant’s father only in a general way because he had “come and
worked on [her] water.” Her claims, however, were partially contradicted by Special Agent
Harmon, who testified that he witnessed the prospective juror enter the courtroom, exchange
friendly waves with the defendant, and engage her in conversation for ten to fifteen seconds
before taking her seat. He further testified that he pointed out their behavior to the
prosecutor.

       Special Agent Harmon’s report of the friendly exchange between the defendant and
the prospective juror was sufficient, in and of itself, to support the trial court’s finding that
there was no discriminatory intent in the prosecutor’s exercise of his peremptory challenge.

                                              -13-
We conclude, therefore, that the defendant is not entitled to relief on the basis of this issue.

                              III. Sufficiency of the Evidence

        The defendant next contends the evidence is insufficient to support her convictions.
Because a jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, on appeal a convicted defendant has the
burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Thus, we must consider “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838
S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim.
App. 1992).

        All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

       The defendant was convicted of procuring an illegal vote, in violation of Tennessee
Code Annotated section 2-19-117, which makes it a Class E felony for “any person to
procure, aid, assist, counsel or advise another to vote in any convention, primary or final
election, knowing such person is disqualified.” Tenn. Code Ann. § 2-19-117 (2003).



                                              -14-
       The defendant argues that the evidence is insufficient to show beyond a reasonable
doubt that she aided or assisted Yolanda Giles and Amos Watkins to vote in the 2009 Bolivar
Municipal Election or that she had actual knowledge of the disqualified status of Giles,
Watkins, and Taletha Traylor at the time of the election. In support, she cites, among other
things, the “vague” testimony given by Watkins about his own knowledge of his felony
conviction and the defendant’s role in transporting him to the election, the fact that Giles was
unable to say exactly when her conversation with the defendant about her felony record took
place and testified that she did not mention her felony conviction when the defendant
specifically approached her about voting in the May 2009 election, and the various defense
witnesses who contradicted the testimony provided by the three main prosecution witnesses.
The defendant also asserts that Giles, Watkins, and Traylor are accomplices to the crime
whose testimony about the defendant’s knowledge of their disqualification to vote was
uncorroborated by any other evidence.

        The State responds by arguing that the three disqualified voters are not accomplices
to the crime because they could not have been indicted or convicted of the same offense as
the defendant. The State further argues that the evidence, when viewed in the light most
favorable to the State, is sufficient to sustain the convictions. We agree with the State.

        An accomplice is one who “knowingly, voluntarily, and with common intent
participates with the principal offender in the commission of the crime alleged in the
charging instrument.” State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997). The
test for determining whether a witness is an accomplice is whether the witness could be
indicted for the same offense as the defendant. See State v. Green, 915 S.W.2d 827, 831
(Tenn. Crim. App. 1995); State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).
When the evidence is clear and undisputed that a witness participated in the crime, then the
trial court must declare the witness to be an accomplice as a matter of law and instruct the
jury that the witness’s testimony must be corroborated. Lawson, 794 S.W.2d at 369. On the
other hand, when the evidence is unclear, it becomes a question of fact for the jury to
determine whether the witness is an accomplice and, if so, whether there is corroborating
evidence to support the witness’s testimony. Id.; see Green, 915 S.W.2d at 831-32.

        Although the three disqualified voters who testified for the State were indicted for
illegal voting, they could not have been indicted or convicted of procuring an illegal vote.
Thus, they were not accomplices whose testimony had to be corroborated. We note,
moreover, that there was some corroborating testimony of the defendant’s knowledge of the
disqualification of at least one of the three, as Debbie Jones testified that she told the
defendant that Watkins was a felon and that she did not think he was eligible to vote.

       In sum, when viewed in the light most favorable to the State, the evidence showed that

                                              -15-
the defendant, who by her own acknowledgment is well-versed in election law, “procured,
aided, and assisted” those three individuals to vote in the 2009 Bolivar Municipal Election,
knowing that they were disqualified to vote due to their felony convictions, by encouraging
them to participate in early voting and picking them up in a church van and carrying them to
the polls. We conclude, therefore, that the evidence is sufficient to sustain the defendant’s
convictions.

                        IV. Testimony by Special Agent Harmon

        Finally, the defendant next contends that the trial court committed reversible error by
ruling that her telephone conversations with Special Agent Harmon were admissible under
the party opponent admission exception to the rule against hearsay. The defendant argues
that her statements were not hearsay and should have been excluded as either irrelevant or
unfairly prejudicial to her case. The defendant further argues that, even if the trial court was
correct in ruling that her statements constituted hearsay that fell within a recognized
exception to the rule against hearsay, it should have still excluded them under Tennessee
Rules of Evidence 401, 402, and 403 as irrelevant and unfairly prejudicial.

       Agent Harmon’s specific testimony regarding his first telephone conversation with
the defendant was as follows:

       I placed a phone call to her and during that conversation [the defendant] told
       me that she has been fighting 400 years of oppression in Hardeman County.
       [The defendant] stated that this investigation was a bunch of bullshit. [The
       defendant] stated that the D.A. Mighty Mouse was running around trying to
       ruin her. [The defendant] stated that I knew what this was all about. [The
       defendant] stated that she would give me a statement when the Sheriff’s
       daughter, Diane Hicks, Michael Miller’s sister, and Monroe Woods were
       indicted for voter fraud. [The defendant] stated that these people voted
       illegally in Hardeman County. [The defendant] stated that I was a little rusty
       on my election law and hung up the phone on me.

       Agent Harmon testified that in the second telephone conversation the defendant

       stated that this investigation was bullshit. [The defendant] stated that this
       incident was going to be like the Rosa Parks but bigger. [The defendant] stated
       that she was going to put Hardeman County on the map and everyone would
       know what was going on. [The defendant] then stated, quote, “bring on with
       what you got,” end quote, and hung up the phone again on me.



                                              -16-
        A hearsay statement is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Tenn. R. Evid. 801(c). As stated in Tennessee Law of Evidence,

       [H]earsay is present if the out-of-court statement must be true to be relevant.
       Thus, for hearsay it is important whether the declarant is telling the truth. . . .
       The reason for this principle is that hearsay evidence is excluded because of
       concerns that the declarant’s credibility cannot be adequately tested. If the
       declarant’s credibility is irrelevant because it does not matter whether the
       declarant is telling the truth, the dangers of hearsay are not present and the
       statement is not viewed as hearsay.

Neil P. Cohen et al., Tennessee Law of Evidence, § 8.01[4][i] (5th ed. 2005). Whether a
challenged statement is hearsay is a question of law that is subject to de novo review. State
v. Gilley, 297 S.W.3d 739, 760 (Tenn. Crim. App. 2008) (citing State v. Schiefelbein, 230
S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn.
Ct. App. 2005)).

        “Relevant evidence” is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Nonetheless,
even if relevant, “evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403.

         Among her statements to Agent Harmon, the defendant claimed “400 years of
oppression in Hardeman County”; that the investigation was “a bunch of bullshit”; that other
persons whom she named should be indicted for voter fraud; and that Agent Harmon “was a
little rusty on [his] election law.” Additionally, she made derogatory remarks about the
district attorney general. At trial, these wide-ranging statements were lumped together as one
“statement,” rather than considered individually, with the result that the trial court was never
asked to determine whether each individual statement was hearsay, or otherwise excludable
under the rules of evidence. We note, however, that in her trial testimony, the defendant made
clear her feelings toward the prosecution about the charges against her and of the individuals
involved. Thus, even if the trial court erred in allowing Agent Harmon to testify about his
conversations with the defendant, the error was harmless, for her trial testimony echoed the
sentiment of her earlier telephone statements.




                                               -17-
                                      CONCLUSION

       Based on the foregoing authorities and reasoning, we reverse the judgments of the trial
court and remand for a new trial.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




                                             -18-
