            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                            MAY 1999 SESSION
                                                   FILED
                                                    August 19, 1999

                                                  Cecil Crowson, Jr.
                                                 Appellate Court Clerk
STATE OF TENNESSEE,           )
                              )    C.C.A. NO. 02C01-9805-CR-00142
            Appellee,         )
                              )    SHELBY COUNTY
VS.                           )
                              )    HON. ARTHUR T. BENNETT,
DERRICK SAYLES,               )    JUDGE
                              )
            Appellant.        )    (Second Degree Murder)



FOR THE APPELLANT:                      FOR THE APPELLEE:


JEFFREY S. GLATSTEIN                    MICHAEL E. MOORE
200 Jefferson, Suite 1313               Solicitor General
Memphis, TN 38103
      (On Appeal)                       PETER M. COUGHLAN
                                        Asst. Attorney General
EDWIN C. LENOW                          John Sevier Bldg.
100 North Main Bldg.                    425 Fifth Ave., North
 Memphis, TN 38103                      Nashville, TN 37243-0493
      (At Trial)
                                        WILLIAM L. GIBBONS
                                        District Attorney General

                                        JAMES A. WAX, JR.
                                               -and-
                                        PATIENCE R. BRANHAM
                                        Asst. District Attorneys General
                                        201 Poplar Ave., Ste. 301
                                        Memphis, TN 38103-1947




OPINION FILED:____________________



REVERSED AND REMANDED


JOE G. RILEY,
JUDGE
                                    OPINION



       A jury found the defendant guilty of the second degree murder of Marvin

Randolph. The defendant now appeals, raising the following issues for our review:

             I. whether the evidence is sufficient to support the defendant’s
       conviction;

              II. whether the trial court abused its discretion by refusing to
       allow defense counsel to cross-examine a state witness regarding
       possible promises made in exchange for his testimony;

             III. whether the trial court abused its discretion in allowing
       extensive juror questioning of a state witness;

             IV. whether the state committed plain error by asking the
       defendant on cross-examination whether he had ever “borrowed”
       someone’s car without permission; and

              V. whether cumulative error requires a new trial.

Finding error in the refusal to allow defense counsel to develop impeachment proof

of the state’s key witness, we REVERSE and REMAND for a new trial.



                                         FACTS



       At trial, Antonio Callicutt testified that on the afternoon of October 16, 1996,

while he was sitting on the front porch of his residence, he saw the victim, Martin

Randolph, in his car at a stop sign on the corner of his street. According to Callicutt,

he saw the defendant, also known as “Baba,” ride a bicycle to the victim’s car, yell

“Payback, mother f - - - - -,” and shoot him repeatedly. Callicutt testified that the

defendant was accompanied by other individuals, that “[t]hey were shooting the gun,”

and that when the victim’s car began to drive away, “[t]hey kept shooting” and then

left the scene in a Suburban driven by Corey Ragland. When asked to clarify who

“they” were and who shot at the victim, Callicutt explained that while the defendant

was accompanied by “some more boys,” the defendant was the only one shooting.

Callicutt testified that after the shooting, he followed the victim’s car to a local Piggly

Wiggly grocery store, where it crashed into a parked car. Callicutt admitted he was




                                            2
currently in jail awaiting an indictment on an aggravated robbery charge, but he

denied being promised anything in exchange for his testimony.



       On cross-examination, Callicutt denied being with Rhonda Nichols, a family

friend, on the day of the shooting. He admitted he had a prior conviction for

solicitation to commit a felony. The defense attorney asked him several questions

regarding his prior inconsistent testimony at a preliminary hearing. The defense

attorney based his phrasing of Callicutt’s prior testimony on his own handwritten

notes from the audio tape of the preliminary hearing. Callicutt flatly denied making

almost all of the statements attributed to him by defense counsel.



       The dairy manager at the local Piggly Wiggly store testified that he was eating

his lunch in his car in the parking lot when the victim’s car smashed into his car. The

dairy manager testified he asked the victim who shot him, and the victim replied,

“Baba did it.” The victim later bled to death from a gunshot to his leg that severed an

artery. An investigating officer testified that after the incident, the defendant admitted

his nickname was “Baba.”



       After the state rested, Rhonda Nichols, a close friend of Callicutt’s family,

testified that on the day of the shooting, Callicutt was not at his house, but rather was

watching television with her and members of his family at his aunt’s nearby house.

She testified that when they heard the shots, they went outside to see what

happened, but the street was empty of people and cars.



       The security guard at Piggly Wiggly testified that after the victim crashed into

the parking lot, he asked him who shot him, and the victim replied, “Ray-Ray.” He

testified the victim might have said “Baba,” but he heard “Ray-Ray.”



       The defendant testified on his behalf, denying that he shot the victim, who he

claimed not to have known. According to the defendant, he spent the afternoon in



                                            3
question at home and at the Boy’s Club. He admitted that one of his nicknames was

“Baba.”



                          SUFFICIENCY OF THE EVIDENCE



       The defendant complains that the evidence is insufficient to support his

conviction. As support for his argument, the defendant complains that Callicutt’s

testimony is internally inconsistent, in that he first testified “they” shot the victim, but

then later testified that only the defendant shot the victim. As the state concedes, the

record reveals that Callicutt was a rather inarticulate witness, which explains why he

was often prompted by the district attorney, the defense attorney, and even the jury

to explain his answers.



       The defendant also asserts that the record shows Callicutt’s trial testimony

was inconsistent with his prior testimony at a preliminary hearing. The record reveals

that the defense attorney asked Callicutt several times about the substance of his

preliminary hearing testimony. Defense counsel did not have a written transcript of

the preliminary hearing testimony, so he relied upon the notes he took while listening

to the preliminary hearing audio tape to phrase what he represented Callicutt’s prior

testimony was. For example, the defense attorney asked,

       Okay. And let me ask you please, sir, if you were asked these
       questions and did you give these answers:

                      “Question: Who was driving your car? Corey
               was...” -- and you gave this answer. “Corey was in my
               car on the next street.”


Each time the defense attorney questioned Callicutt in this way, however, Callicutt

denied having testified the way the defense attorney represented he had. Questions

by counsel are not evidence.



       The defendant also notes that Callicutt’s testimony is directly contradicted by

Ms. Nichol’s testimony that Callicutt was with her at the time of the shooting and did



                                             4
not witness anything. Because the jury, not this Court, decides questions concerning

witnesses’ credibility, the weight and value given to evidence, and all factual issues,

the defendant’s sufficiency challenge will not succeed merely because a state

witness’s testimony conflicts with a defense witness’s testimony. See State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       The gist of the defendant’s argument is that his conviction rests entirely upon

the testimony of Callicutt whose testimony is both incredible and contradicted. The

record does not support the defendant’s claim that Callicutt’s testimony is the only

evidence against him. To the contrary, the record shows that shortly after the victim

was shot, he told the Piggly Wiggly dairy manager that “Baba” shot him. There is

ample evidence, including the defendant’s own admission at trial, that the defendant

is “Baba.” Granted, the evidence presented by the defendant squarely contradicted

much of the state’s evidence. It is the jury’s duty, however, to sort through those

contradictions and assign credibility, and here, the jury opted to accredit the state’s

witnesses. Because a review of the evidence in the light most favorable to the state

reveals that a rational trier of fact could have found beyond a reasonable doubt the

essential elements of second degree murder, the defendant’s sufficiency challenge

must fail. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d

560 (1979); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



                    ATTACK ON CALLICUTT’S CREDIBILITY



              The defendant next challenges the trial court’s decision not to allow him

to cross-examine the prosecutor and/or Callicutt about whether promises were made

in exchange for Callicutt’s testimony against the defendant. The record shows that,

after jury selection but before the state presented any evidence, the bailiff reported

to the trial judge that Callicutt was refusing to enter the courtroom because he was

scared. With the jury absent from the courtroom, the trial judge ordered Callicutt to

enter the courtroom, and he eventually complied. Callicutt testified under oath that



                                          5
earlier that morning, the defendant threatened him and told him not to testify.

Callicutt also testified that two individuals visited his girlfriend and child at his house

and threatened that “something” would happen if Callicutt testified.



       Callicutt insisted he did not want to “be involved” or testify in this case. The

trial court asked Callicutt if he would still be scared to testify if the court reduced his

bond in order to limit his exposure to the defendant in jail. Callicutt replied that he

would still be exposed to the defendant if he was indicted and the defendant was

convicted. He continued to adamantly insist that out of his and his family’s best

interests, he did not want to be involved in this case, even if that meant he would be

charged with perjury.



       Following a recess, a bench conference was held during which the parties

discussed Callicutt’s testimony. The defense attorney related that the defendant

denied threatening or even being near Callicutt. One of the prosecuting attorneys

reported that she needed to talk to Callicutt to ask him for a phone number where his

girlfriend could be reached. The trial judge called another recess, suggesting that the

prosecuting attorney might send an investigator with a subpoena to talk to Callicutt’s

girlfriend.



       After the second recess, the state proceeded with its first witness, the victim’s

mother, whose testimony was relatively short. Immediately following her testimony,

Callicutt was called to testify before the jury, where he proceeded to testify against

the defendant without a hint of hesitation or reluctance. The record does not explain

Callicutt’s change of heart regarding his testimony. Callicutt testified before the jury

that he was not promised anything in exchange for his testimony.



       Following Callicutt’s testimony, the jury exited the courtroom for a recess.

However, prior to Callicutt leaving the courtroom and prior to any recess by the court,

one of the prosecuting attorneys addressed the trial court. He stated, “we feel that



                                            6
[Callicutt] testified truthfully and in light of the fact that there have been some threats

allegedly made . . . and I have reviewed the case against him, the state would

recommend a $1,000 bail for [Callicutt].” The prosecuting attorney stated that

“[Callicutt’s] file just appeared on my desk,” having been given to him by an assistant,

“not knowing at any time the involvement that Mr. Callicutt had with this case.” The

prosecuting attorney stated he believed Callicutt’s case would be submitted to the

grand jury as simple robbery, not aggravated robbery. Although noting Callicutt had

a prior felony conviction and numerous misdemeanors, he stated Callicutt testified

truthfully and recommended a $1,000 bond.



       The trial judge accepted the state’s recommendation, reducing Callicutt’s bond

accordingly, and stated it was doing so because of the threats lodged against him

and his family so that “at least, we can keep this defendant and this witness

separated as long as possible.” The following then transpired:

              [DEFENSE ATTORNEY]: Will that be told to the jury?

              THE COURT: No. They don’t need to know that.

              [DEFENSE ATTORNEY]: Because they had said that
              there was nothing -- that he has nothing and now they’re
              making --

              [PROSECUTING ATTORNEY]: He was not promised
              anything. I stated as an officer of the court he was not
              promised anything for that.

              THE COURT: No. He wasn’t promised anything. I’m
              doing this based on threats. In fact, I may recommend
              grand jury proceedings that may go against your client.
              I’ve got it under advisement. So I’m doing this based on
              threats to him. He’s testified under oath as well as
              there’s allegations that his family members have been
              threatened to keep him from testifying. All right. That’s
              the end of that. It doesn’t go before the jury.

               [DEFENSE ATTORNEY]: Could we make a tender of
               proof so that will be in this trial record.

               THE COURT: Proof of what?

               [DEFENSE ATTORNEY]: To have [the prosecuting
               attorney] testify that he’s made a recommendation so the
               proof -- in case the case goes up that --

               THE COURT: What do you mean?



                                            7
              [DEFENSE ATTORNEY]: The jury has been told that
              initially he had no deals and now they’re coming in after
              he’s testified and recommending a $1,000 bond.

              [PROSECUTING ATTORNEY]: He had no deal. I mean,
              I don’t know how to say that any clearer.

              THE COURT: He’s already testified now.

              [DEFENSE ATTORNEY]: Yes, sir.

              THE COURT: And the court is doing this based on
              threats to him, too. I’m taking that into consideration
              more than anything else. In fact, that’s about the only
              thing about reducing the bond to that amount. It may
              should be [sic] reduced some anyway if it’s not going to
              proceed on aggravated robbery. But the reason I’m
              considering a $1,000.00 [bond] is because of these
              threats and his demeanor, scared to come in the court.
              We had to force him in the court because of these
              threats. And he finally came in. So that’s the court’s
              action. All right.



       An accused has the right to explore on cross-examination any promises of

leniency to the prosecution witness in order to show motive for testifying falsely for

the state. State v. Smith, 893 S.W.2d 908, 924 (Tenn. 1994); State v. Norris, 684

S.W.2d 650, 654 (Tenn. Crim. App. 1984). Undue restriction of this right may violate

a defendant’s right to confrontation. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106

S.Ct. 1431, 89 L.Ed.2d 674 (1986). Evidence of any understanding or agreement

relating to the future prosecution of a state witness is certainly relevant to credibility,

and the jury is entitled to know of it. Giglio v. United States, 405 U.S. 150, 154-55,

92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Specifically, the refusal to allow defense

counsel an opportunity to cross-examine a prosecution witness about an agreement

with the state as to future prosecution violates the Confrontation Clause of the Sixth

Amendment. Delaware v. Van Arsdall, 475 U.S. at 679.



       In the case at bar defense counsel on cross-examination of Callicutt did not

ask him about his change of heart or a possible agreement with the state. Nor did

he ask the trial court to be allowed to recall Callicutt after the bond recommendation

was made. This may have been a tactical decision as it might have led to testimony

concerning alleged threats by the defendant. However, this does not end our inquiry.


                                            8
         When Callicutt was first called into the courtroom, he adamantly and

continually insisted that he would not testify, even if it led to another criminal charge

against him. The trial court mentioned the possibility of a reduced bond. One of the

prosecuting attorneys stated she needed to talk to Callicutt concerning the alleged

threat to his girlfriend. Then, when called to testify before the jury, Callicutt obviously

had a change of heart and testified without any hesitation whatever. Immediately

after Callicutt’s testimony, the state recommended the reduced $1,000 bond.



         The defendant was clearly entitled to explore what, if anything, the prosecuting

attorney told Callicutt prior to his testifying, and whether there had been an

agreement between the state and Callicutt. Specifically, the defendant was entitled

to determine if the prosecuting attorney told Callicutt anything that would make

Callicutt think he would be released on bail or receive any other favorable treatment

if he testified for the state. See Giglio v. United States, 405 U.S. at 154-55.



         Defense counsel properly proposed to make an offer of proof by questioning

one of the prosecuting attorneys. See Tenn. R. Evid. 103(a)(2). The prosecuting

attorney argued there was no agreement, and defense counsel was not allowed to

pursue an offer of proof. W e do not know what would have developed if defense

counsel had been allowed to pursue his offer of proof. However, the mere statement

by the prosecuting attorney that there was no agreement is insufficient to deny

defendant the right to pursue evidence relating to the credibility of the state’s key

witness. Under these circumstances, the only possible remedy is a remand for a new

trial.



                        JURY QUESTIONING OF CALLICUTT



         Next, the defendant challenges the trial court’s decision to allow the jury to

pose questions to Callicutt. A trial court has broad discretion in controlling the



                                            9
conduct of a trial. State v. Gibson, 973 S.W.2d 231, 245 (Tenn. Crim. App. 1997).

A key consideration for whether the trial court abused its discretion in allowing jury

questioning of a witness is whether it was prejudicial to the defendant. State v.

Jeffries, 644 S.W.2d 432, 435 (Tenn. Crim. App. 1982). Thus, a trial court abused

its discretion by allowing forty-two transcript pages of argumentative, prejudicial,

irrelevant, and biased questioning by several jurors who assumed the role of state’s

advocate. Id. at 434-35.



       Here, the record reveals that near the end of the defense counsel’s cross-

examination of Callicutt, one juror spontaneously asked Callicutt a question. The trial

judge replied, “Don’t ask any questions. If you have a question, just pose it to us.”

The defense counsel’s questioning of Callicutt resumed, and a few moments later,

both the defense counsel and the prosecutor announced they had no more questions

for this witness. While the jury passed around some picture exhibits, the parties held

a bench conference on an unrelated matter. The bailiff then informed the trial court

that one of the jurors had a question. The trial court required the juror to pose the

question to the court, and before the witness answered the question, the judge

approved it.



       In all, the jurors posed six questions to Callicutt.     Prior to the witness

answering the questions, the trial court screened the questions, giving his approval

that the question was acceptable. Five of the six juror questions were rephrased by

either the assistant district attorney or the trial court, but one was not. Of the six

questions, one was previously asked and answered, another served to clarify the

witness’s testimony, and the remainder appeared to solicit new evidence; however,

all of the questions were germane to the issues raised during the witness’s testimony.

After three of the six questions, the defense attorney asked extensive follow-up

questions, even taking the opportunity at one point to try to impeach the witness with

his prior statement to police.




                                          10
       We conclude the jury questioning was not prejudicial to the defendant. In fact,

given the substance of some of the witness’s answers and the additional opportunity

to impeach the witness, much of the questioning benefited the defendant. As such,

we find no abuse of discretion. This issue is without merit.



                    PREJUDICIAL QUESTION BY THE STATE



       Finally, the defendant claims that a question posed by the state constituted

plain error. While cross-examining the defendant during trial, the state questioned

the defendant about his primary mode of transportation, that is, whether he had a car

or whether he relied upon his bike and/or rides from Corey Ragland. The defendant

testified that he sometimes drove his parents’ car. The state asked whether he had

ever driven any other cars, and the defendant replied he had. The state then asked

whether he had “borrowed” those other cars without permission.             Before the

defendant answered, the defense attorney lodged a general objection, which was

sustained. The issue was then dropped; the state switched lines of questioning; and

the defendant did not request any further remedy, such as a curative instruction or

mistrial.



       Because the defendant did not raise this issue in his motion for new trial, we

will reverse only upon a finding of plain error. See T.R.A.P. 3(e); Tenn. R. Crim. P.

52(b); State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984). Plain error is error that affects

the “substantial rights” of the defendant and needs to be corrected in order “to do

substantial justice.” Tenn. R. Crim. P. 52(b). This burden is not met under the

circumstances of this case. This issue is without merit.




                                          11
                                    CONCLUSION



       Based upon our examination of the record, we conclude the defendant was

improperly denied the right to develop evidence relating to the credibility of the state’s

key witness. The judgment of the trial court is, therefore, REVERSED and the case

REMANDED for a new trial.



                                          _______________________________
                                                 JOE G. RILEY, JUDGE



CONCUR:



(See separate dissenting opinion)
JOHN H. PEAY, JUDGE



______________________________
THOMAS T. WOODALL, JUDGE




                                           12
