                                                                                          10/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

         STATE OF TENNESSEE v. STEPHANO LEE WEILACKER

                        Circuit Court for Montgomery County
                                    No. 40700673
                       ___________________________________

                           No. M2016-00546-CCA-R3-CD
                       ___________________________________


TIMOTHY L. EASTER, J., concurring in part and dissenting in part.

        I agree with majority’s conclusion that after plenary review, Defendant is not
entitled to relief on the suppression issues regarding his detention and arrest. I further
agree with the majority’s conclusion that Defendant is not entitled to plain error relief on
the indictment issue. However, I respectfully disagree that Defendant is entitled to a new
trial for statements made by the prosecutor during closing argument.

        First, I would note that Defendant failed to raise a contemporaneous objection to
these statements at trial, which would provide a ground for waiver of the issue independent
of Defendant’s motion for new trial woes. See Tenn. R. App. P. 36(a); State v. Jordan,
325 S.W.3d 1, 58 (Tenn. 2010) (noting that “defense counsel’s failure to object
contemporaneously [to improper prosecutorial argument] will constitute a waiver of the
issue on appeal”); State v. Fusco, 404 S.W.3d 504, 519 (Tenn. Crim. App. 2012); but see
State v. Hawkins, 519 S.W. 3d 1, 48-49 (Tenn. 2017) (choosing to utilize plenary review in
a death penalty case for two alleged instances of improper prosecutorial argument despite
failure to object where issues were raised in a motion for new trial). However, this Court
has been specifically directed by the Tennessee Supreme Court to conduct a plenary review
of the issue.

        Even under a plenary review standard, I do not believe that the prosecutor’s
statements were “‘so inflammatory or improper that it affected the outcome of the trial to
the defendant’s prejudice.’” Hawkins, 519 S.W. at 48 (quoting State v. Banks, 271
S.W.3d 90, 131 (Tenn. 2008)). The prosecutor was relating the fact that Mr. Selby had an
incentive to tell the truth due to his plea agreement, even if the prosecutor used slightly
more colorful language than was strictly necessary when he referred to what would happen
if Mr. Selby “f[ed] [him] a bunch of bologna.” See id. (quoting Banks, 271 S.W.3d at 131)
(noting that “‘prosecutors, no less than defense counsel, may use colorful and forceful

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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’”). In looking at the five factors used to determine
whether improper prosecutorial argument constitutes reversible error, see id. (quoting State
v. Jackson, 444 S.W.3d 554, 591 n.50 (Tenn. 2014)), I would note that the trial court took
no corrective action because of Defendant’s failure to object, 1 that the intent of the
prosecutor was to respond directly to defense counsel’s argument regarding Mr. Selby’s
credibility, and that there were no other substantial errors during the course of the trial with
which the statement would have had a cumulative effect. As to the strength or weakness
of the case, I disagree with the majority’s conclusion that the prosecutor’s argument alone
substantially altered the jury’s consideration of Mr. Selby’s credibility such that without it
they may have convicted Defendant of only facilitation. This Court has already
determined that Mr. Selby’s testimony was adequately corroborated and that the evidence
introduced at trial was sufficient to sustain Defendant’s convictions under a theory of
criminal responsibility. Weilacker I, 2011 WL 743416, at *5. “‘[F]leeting comments
that passed without objection during the rough-and-tumble of closing argument in the trial
court should not be unduly magnified when the printed transcript is subjected to
painstaking review in the reflective quiet of an appellate judge’s chambers.’” Banks, 271
S.W.3d at 132 n.30 (quoting United States v. Mullins, 446 F.3d 750, 758 (8th Cir. 2006)).
Moreover, the trial court instructed the jury that the arguments of counsel are not evidence,
and juries are presumed to follow the trial court’s instructions. See State v. Butler, 880
S.W.2d 395, 399 (Tenn. Crim. App. 1994). Our supreme court has instructed that “[a]n
appellate court should not lightly overturn a criminal conviction ‘solely on the basis of the
prosecutor’s closing argument,’” Hawkins, 519 S.W.3d at 48 (quoting Banks, 271 S.W.3d
at 131), and I would not do so in this case.


                                                         _________________________________
                                                         TIMOTHY L. EASTER, JUDGE




        1
          “A contemporaneous objection provides the trial court with an opportunity to assess the State’s
argument and to caution the prosecution and issue a curative instruction to the jury if necessary.” Jordan,
325 S.W.3d at 57-58. Only “when flagrantly improper arguments are made” is a trial court required to sua
sponte “step in and take proper curative action.” Banks, 271 S.W.3d at 132.
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