             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE

                           JULY 1999 SESSION              FILED
                                                         September 10, 1999
STATE OF TENNESSEE,          )
                             )                        Cecil Crowson, Jr.
             Appellee,       )                       Appellate Court Clerk
                                  No. 01C01-9805-CR-00209
                             )
                             )    Davidson County
v.                           )
                             )    Honorable Frank G. Clement, Jr., Judge
                             )
SHAWN ROBERT COTTON          )    (Vehicular homicide by intoxication)
                             )
             Appellant.      )



For the Appellant:                For the Appellee:

Robert P. Ballinger               Paul G. Summers
601 Woodland Street               Attorney General of Tennessee
Nashville, TN 37206                      and
(AT TRIAL AND ON APPEAL)          Daryl J. Brand
                                  Assistant Attorney General of Tennessee
                                  450 James Robertson Parkway
John G. Oliva                     Nashville, TN 37243-0493
601 Woodland Street
Nashville, TN 37206               Victor S. Johnson, III
(ON APPEAL)                       District Attorney General
                                          and
                                  Bernie McEvoy
                                  Assistant District Attorney General
                                  Washington Square, Suite 500
                                  222 2nd Avenue North
                                  Nashville, TN 37201-1649




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION

              The defendant, Shawn Robert Cotton, appeals as of right his conviction

by a jury in the Davidson County Criminal Court for vehicular homicide by intoxication, a

Class B felony. The trial court sentenced the defendant to serve twelve years in the

Department of Correction as a Range I, standard offender. The defendant contends

that:

              (1) the evidence is insufficient to support the conviction,

              (2) the trial court erred during voir dire by impliedly threatening
              to hold the jurors in contempt for perjury if they failed to return
              a verdict,

              (3) the state improperly struck African-American female jurors
              from the panel based upon their race and gender,

              (4) the state improperly commented upon the defendant’s
              silence and improperly appealed to the jury’s sympathy during
              argument, and

              (5) the cumulative effect of the errors violates the defendant’s
              right to a fair trial.

We affirm the trial court’s judgment of conviction.



              Detective Rickey Ollis testified that on April 2, 1996, at 3:15 a.m., he was

responding to another dispatch when he heard tires screech and a crash. He said that

in less than thirty seconds, he came upon a red Camaro embedded in an embankment

across from a “T” intersection. He stated that on the driver’s side, he saw an

unconscious male seated behind the steering wheel. He said the man had long, dark

hair and was of average build. He identified this man as the defendant. He said he

saw a female slumped down in the passenger seat with her chin on her chest. He said

her feet were bent underneath the passenger’s bucket seat, and her back was against

the bottom of the seat as if she were sliding out of it. He stated that the driver’s door

was jammed, and he tapped on the driver’s window two or three times until the

defendant started to move. He said the passenger’s door was also jammed, but he

could see the passenger’s chest rising and falling. He stated that he radioed for an


                                              2
ambulance and an extrication unit. He said that he then saw a third person rise up in

the back seat.



              Detective Ollis testified that the fire department arrived within five minutes

and that he directed them to the passenger’s side, believing the female had the most

serious injuries. He said that once they cut and pried the passenger’s door open, the

defendant immediately crawled out over the female. He said that a large gear shift

separated the car’s bucket seats. He said that considering the distance between the

seats and the dashboard, it would not have been possible for two adults to change

places in the car during the accident.



              Metro Police Officer Donald Davidson testified that he went to the

accident scene. He said that the front of the 1968 red Camaro was compacted but that

the damage did not extend through to the passenger’s compartment. He said the

occupants were still inside the car when he arrived, and he saw a male with shoulder-

length hair in the driver’s seat. He said that the man, whom he identified as the

defendant, was looking around. He said he saw an unconscious female in the

passenger’s seat with her body mostly down on the floorboard. He said this woman

was eventually identified as the victim, Helen Hollis.



              Officer Davidson testified that he asked the defendant what happened

and that the defendant told him that he thought the police were chasing them. He said

the defendant appeared dazed. He said he went to the passenger’s side a few

seconds before the door was pried open. He said the defendant crawled over the

victim and out the passenger’s door. He said the backseat passenger, who was later

identified as Chad Jumps, crawled between the seats, over the victim and out the

passenger’s door.




                                             3
              Officer Davidson testified that he led the defendant away from the car,

observed that the defendant’s eyes were red, and noticed the odor of alcohol on the

defendant’s breath. He said that he asked the defendant what happened, and the

defendant first responded that the victim was driving. He said the defendant admitted

that he had been drinking, stated that the victim was driving, and said that a car pulled

out in front of them. Officer Davidson said that when he told the defendant that he saw

the defendant in the driver’s seat, the defendant said that the defendant had made a

mistake, that he meant to say that he was driving, and that he was trying to help the

victim because she had been drinking that night. Officer Davidson said that he

explained the implied consent law to the defendant and requested that the defendant

submit to a blood alcohol test. He said the defendant replied, “I’ll give you any f***ing

thing you want because I wasn’t driving.”



              Officer Davidson testified that about three hours after the wreck, he

arrested the defendant and advised him of his Miranda rights. He said that the

defendant nodded his head to indicate that he did understand his rights. He said he

then asked if the defendant could tell him what happened, and the defendant shook his

head to indicate “no.” Officer Davidson said that he again asked the defendant if he

could tell them who was driving or what happened, and the defendant again shook his

head to indicate “no.”



              Officer Davidson testified that the inside of the car was damaged from the

occupants striking the dashboard and that the glove box was heavily dented in the area

of the victim’s knees. He admitted that the dents in the glove box did not reveal the

identity of the passenger. He stated that the cracks that extended across the car’s

windshield resulted from the front of the car compacting upon impact and were not

consistent with a person’s head striking the windshield. He said that the steering wheel

was bent from impact with an occupant. He stated that based upon the physical



                                             4
evidence, the car hit the embankment straight on and that nothing indicated that the car

had spun or rolled.



              Sandra Fielder, an emergency room nurse, testified that she treated the

defendant on April 2, 1996. She said that the defendant had two lacerations on his chin

and abrasions on his left hand and right elbow. She said that she did not see any

injuries to his chest. She stated that he smelled strongly of alcohol. She said that he

initially refused to submit to a blood alcohol test, claiming that he did not like needles.

She said that she laughed because the defendant’s chest was covered with blue

tattoos, and she told him she thought that he could stand the test if he had been able to

stand the tattoos. She said that the defendant later agreed to the test. She said that

her notes from that day indicate that the defendant denied being the driver of the car.



              Officer David Kitchens testified that he worked in the accident

investigation division of the Metro Police Department. He said that he was called to an

accident scene after 3:15 a.m. on April 2, 1996. He said that he saw a female in the

passenger’s seat with her feet tucked underneath her. He said that the defendant had

just left the car and that the odor of alcohol from the defendant’s mouth was obvious to

extreme. He said that he saw no evidence that the car had flipped or spun. He said

the damage to the steering wheel stood out in his mind.



              Officer Kitchens testified that he followed the defendant to the hospital

where the defendant was loud, boisterous, profane and refused to stay on the bed. He

said he read the implied consent law to the defendant again and asked him to submit to

a blood alcohol test. He said that the defendant refused the test. He said he informed

the defendant that the officers would force him to submit to the test, and the defendant

agreed to the test after speaking with another officer. He said that while at the hospital




                                              5
with the defendant, he saw a red, half-moon shaped mark across the defendant’s

chest.



              Metro Police Officer Jim Reed testified that he was at the hospital with the

defendant when the defendant refused to submit to a blood alcohol test because he

was afraid of needles. He said that he told the defendant that his fear of needles was

illogical given the fact that the defendant was covered with tattoos. He said that he

noticed an obvious reddish, semi-circular mark on the defendant’s chest similar to a

mark that would be left upon colliding with a steering wheel.



              Special Agent John Harrison of the Tennessee Bureau of Investigation

(TBI) testified that he worked as a toxicologist at the state crime laboratory. He said

that the defendant’s blood sample revealed a blood alcohol content of .17 percent.



              Dr. Bruce Levy, the Davidson County Medical Examiner, testified as an

expert in forensic pathology. He said that he had reviewed the autopsy report on the

victim. He said that the report revealed that she suffered a broken jaw; chin

lacerations; a broken neck; a crushed larynx and trachea; multiple broken ribs; tears in

her liver; a broken spine; a broken right arm; two broken ankles; bruising to her knees,

the front of her legs, and the right side of her chest; and bleeding on the back of her

scalp. He said that she died as a result of the blunt force injuries that she received in

the accident. He said that the injuries were consistent with her sitting in the

passenger’s seat of a car involved in a front end collision. He said that while it would be

possible for her to have received the injuries while in the driver’s seat, her most serious

injuries were to her head and neck; whereas, had she been behind the steering wheel,

the most serious injuries would have been to the chest area. He noted that she did not

have a steering wheel imprint.




                                             6
             Joe Farmer testified that on April 2, 1996, he was working for Browning-

Ferris Industries relocating dumpsters from 1 a.m. to 1 p.m. He said that he likes cars

and that between 2:40 and 2:50 a.m., he noticed a red Camaro across from him at an

intersection. He said that an attractive, dark-haired young woman was driving, and she

had two male passengers. Although he admitted that his truck sits very high up from

the ground, he said that he was positive about the gender of the driver. He said that

later that morning, another driver told him about an accident involving a red Camaro, in

which a young woman was killed.



              Chad Jumps testified that he is an acquaintance of the defendant. He

said that in early April 1996, he was in Tennessee helping the defendant move back to

Illinois. He said that he and the defendant went to a bar and spoke with the bartender,

who offered to show them another night spot called the Mix Factory when her shift

ended. He said that he thought the bartender’s name was Christina Hollis. He said

that she drove them to the Mix Factory, and they stayed until it closed around 3:00 a.m.

He stated that when they left the Mix Factory, Ms. Hollis drove, the defendant sat in the

passenger’s seat, and he sat in the backseat behind the defendant. He said they

stopped at a gas station and bought a twelve pack of beer. He said that Ms. Hollis was

driving when they left the gas station and that he does not remember anything from

then until he awoke in the hospital about eight hours later.



              Dr. Charles Harlan testified that he previously served as the chief medical

examiner for the state of Tennessee, and in addition to his private practice, he currently

served on a contract basis as the county medical examiner for seven counties in middle

Tennessee. He stated that he reviewed the victim’s medical records, including the

autopsy report and photographs of the damage to the car, and he concluded that the

victim was driving the car at the time of the accident. He stated that the victim’s broken

ankles were consistent with the victim bracing her feet against the brake pedal, the



                                            7
accelerator pedal, or the floorboard of the car. He said that her liver injuries could have

been caused by impact with the bottom of the steering wheel. He said that her broken

ribs were consistent with her chest hitting the sides of the steering wheel. He stated

that her broken arm could have resulted from gripping or bracing against the steering

wheel or dashboard at the time of impact. He said that he believed her neck injuries

were caused by the impact with the dashboard over the steering wheel. He admitted

that the injuries to the victim’s neck could have been caused by striking the dashboard

on either side of the car, but he said that the victim’s injuries were caused by multiple

points of impact. He stated that if the victim were in the passenger’s seat when the

accident occurred, sufficient points of impact would not have been present to explain all

of her injuries.



               Dr. Harlan testified that he had also reviewed the defendant’s emergency

room records and Metro Fire Department EMS records from the time of the accident.

He stated that the EMS records note that the defendant had negative trauma to his

chest. He said that the emergency room records reveal that the doctor noted no

bruising on the defendant’s chest in an office visit two days after the accident. He

concluded that if the defendant had exhibited a red semi-circle on his chest on April 2,

this injury would have also been apparent two days later. He noted that the defendant

had pooling of blood and abrasions in the knee area. He stated that the defendant’s

injuries were not consistent with him being the driver.



               Based upon the foregoing evidence, the jury found the defendant guilty of

vehicular homicide by intoxication and vehicular homicide by reckless endangerment.

The trial court merged the two convictions into the vehicular homicide by intoxication

count because the charges stemmed from a single death.




                                             8
                          I. SUFFICIENCY OF THE EVIDENCE

              The defendant contends that the evidence is insufficient to prove beyond

a reasonable doubt that he was driving the car at the time of the accident. He argues

that because Dr. Harlan concluded that the victim was the driver based upon her

injuries and because Joe Farmer saw the victim driving the car shortly before the

accident, the state has failed to disprove all reasonable alternatives to the

circumstantial evidence placing him in the driver’s seat. The state contends that the

evidence is sufficient.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is "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, 99 S. Ct.

2781, 2789 (1979). This means that we may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). For circumstantial evidence to provide the sole basis for the conviction, the facts

must be “so closely interwoven and connected that the finger of guilt is pointed

unerringly at the defendant and the defendant alone.” State v. Crawford, 225 Tenn.

478, 484, 470 S.W.2d 610, 613 (1971). The evidence must be both consistent with the

defendant’s guilt and inconsistent with the defendant’s innocence, exclude all other

reasonable theories except that of guilt, and establish the defendant’s guilt so as to

convince the mind beyond a reasonable doubt that he or she committed the crime.

Patterson v. State, 4 Tenn. Crim. App. 657, 661, 475 S.W.2d 201, 203 (1971).

Whether other reasonable inferences are excluded by the circumstantial evidence is

also a question for the jury.




                                             9
              Tenn. Code Ann. § 39-13-213(a)(2) defines vehicular homicide as “the

reckless killing of another by the operation of an automobile, . . . [a]s the proximate

result of the driver’s intoxication as set forth in § 55-10-401.” Viewing the evidence in

the light most favorable to the state, Dr. Levy testified that the victim died as a result of

the injuries she sustained in the accident. Special Agent Harrison testified that the

defendant’s blood alcohol content was .17 percent on the morning of the accident.

Based upon this percentage, the defendant is presumed to be under the influence of an

intoxicant and his ability to drive thereby impaired. See Tenn. Code Ann. § 55-10-

408(b).



              The circumstantial evidence points to the defendant as the driver of the

Camaro at the time of the accident. Officer Ollis testified that he found the defendant

unconscious in the driver’s seat thirty seconds after he heard the crash. Officers Ollis,

Davidson and Kitchens all testified that the victim was on the passenger’s side with her

feet bent beneath her seat. Officers Kitchens and Reed reported seeing a red semi-

circular mark on the defendant’s chest shortly after the accident. Testimony and

photographs introduced at the trial revealed that the Camaro had bucket seats

separated by a tall gear shift. Both Officers Davidson and Kitchens found no evidence

that the car had spun or rolled. Dr. Levy and Dr. Harlan both admitted that the victim’s

injuries could have been sustained in either the driver’s seat or the passenger’s seat,

with each providing a different explanation of how the victim’s injuries indicated a

particular position. The jury obviously accredited the explanation provided by Dr. Levy.

Although Mr. Farmer testified that he saw a woman driving the Camaro between 2:40

and 2:50 p.m., he did not know who was driving the car at the time of the accident

about twenty-five minutes later. Furthermore, Mr. Farmer or any other witness failed to

give any reasonable explanation of how the defendant came to be located in the

driver’s seat thirty seconds after the accident occurred. Thus, the evidence taken in the




                                             10
light most favorable to the state excludes all reasonable theories except that of the

defendant as the driver.



               II. TRIAL COURT’S STATEMENT TO THE JURY VENIRE

              The defendant contends that the trial court committed reversible error

when it told the jurors during voir dire that they would be held in contempt for perjury if

they failed to return a verdict consistent with the trial court’s instruction on the law. The

defendant admits that he failed to object contemporaneously to the trial court’s

statement. However, he asks that we find plain error because the trial court’s statement

prejudiced the judicial process, thereby requiring a new trial even if the misconduct did

not influence the verdict. See State v. Perry, 740 S.W.2d 723, 726 (Tenn. Crim. App.

1987) (holding that prejudice to the judicial process resulting from a juror’s exposure to

extraneous information required a new trial even though the error probably had no

effect on the trial’s outcome); Tenn. R. Crim. P. 52(b).



              The statement in question came during the trial court’s explanation of the

purpose of voir dire to the jury pool. The trial court told the potential jurors that they

need not disregard their individual life experiences and their common sense when

deliberating. The trial court then stated as follows:

                    It is important however, that your life experiences and
              your beliefs not interfere with your responsibilities.

                      The most important thing that I may say today is that for
              you to be a juror, you must be able to be fair, impartial, and
              unbiased; fair, impartial, and unbiased. And the reason I say
              that is, think of it this way: If you knew of someone who had a
              matter that needed to go to court and needed to be ruled upon
              by jurors, wouldn’t it be terribly unfair if one or more members
              of the jury had their minds made up before they ever heard the
              evidence, before they ever heard a witness testify, and before
              they ever heard what the law was? That wouldn’t be fair. And
              you don’t want to be in that position and I sure don’t.


                      And I promise you, if you serve on the jury, and this
              case may take two or three days to try. If you serve on the
              jury, this jury, and if during those deliberations, two or three


                                             11
              days later you say, I’m sorry, I just can’t apply the law that
              Judge Clement read to us, I’ve just got real strong feelings
              about this and I don’t care what the law is, this is the way I see
              it and I’m going to rule this way. W ell, you will have wasted
              everybody’s time. You will have offended at least [eleven]
              people in the jury room. And I may hold you in contempt for
              having committed perjury. So don’t put yourself or the others
              in that position.

                      Be honest with yourself, be honest with me, be honest
              with your fellow jurors when we ask you if you have life
              experiences or if you have opinions on the subject. Just share
              it with us. It’s best to get it out early.

                     And what can I do, I’ll visit with you and say, well, can
              you put that aside and make a decision based solely upon
              what the witness testified to and what the law is? And if you
              can answer that in good faith, then you’ll be a great juror.

                     And if you say, I’m sorry, but my belief on this issue, or
              my life experience was so personal and so heartfelt that I just
              can’t put that aside. And then what I’ll say is, thank you very
              much for your honesty, you’ve done what you should do. I
              would excuse you not from the whole jury panel but just from
              this case, because it may be this type of case might not be the
              best case for you.

The defendant challenges the underlined portion.



              "The ultimate goal of voir dire is to insure that jurors are competent,

unbiased and impartial, and the decision of how to conduct voir dire of prospective

jurors rests within the discretion of the trial court." State v. Stephenson, 878 S.W.2d

530, 540 (Tenn. 1994). Rule 24(f), Tenn. R. Crim. P., directs that the trial court “give

the prospective jurors appropriate admonitions regarding their conduct during the

selection process.” The trial court’s statement, when viewed in the context of the

court’s explanation of the potential jurors’ responsibilities, was merely an admonition to

the potential jurors to respond truthfully during voir dire. Given this context, we do not

believe it to be clear error that adversely affected a substantial right of the defendant as

is required for a determination of plain error. See State v. Adkisson, 899 S.W.2d 626,

641-42 (Tenn. Crim. App. 1994).



                                III. BATSON CHALLENGE


                                             12
             The defendant contends that the state used its peremptory challenges to

strike African-American females from the jury on the basis of their race and gender in

violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). He argues that

the state’s alleged reason for striking these potential jurors was pretextual. The state

contends that the trial court properly determined that the state challenged these

potential jurors based upon a valid, race-neutral reason.



             The state questioned the jury panel about their views on circumstantial

evidence using several hypothetical scenarios. Ms. Cage said that she would not want

to find the defendant guilty if the evidence against him were circumstantial. Ms. Lee did

not believe the circumstantial evidence in the prosecutor’s hypothetical was good strong

evidence and even stated that the prosecutor had provided no evidence in his

hypothetical. Ms. Taylor stated that she wanted more proof beyond the circumstantial

evidence presented in the hypothetical. In response to a hypothetical burglary with a

questionable eyewitness naming one perpetrator and circumstantial evidence pointing

to a second perpetrator, Ms. Akins said that she was not sure which individual was the

perpetrator. The prosecutor asked for a show of hands from the jury panel of those

who thought the circumstantial evidence in his hypothetical was good strong evidence.

Subsequent questioning reveals that Ms. Lee and Ms. Cage did not raise their hands,

but the record does not reveal whether Ms. Taylor or Ms. Akins raised their hands.



              The trial court denied the state’s motion to strike Ms. Cage for cause,

noting that although it was a close issue, she had not received the jury charge defining

direct and circumstantial evidence. The state then used its peremptory challenges to

strike Ms. Cage, Ms. Lee, Ms. Taylor, and Ms. Akins. The defendant objected, and the

trial court held a hearing in chambers. The state noted that although it had struck four

African-American women, three of the four replacements were African-American

women. The state said that it struck the women because they did not like



                                            13
circumstantial evidence. The trial court found that the record fully supported the state’s

reason, noting that the responses of the stricken jurors indicated that they “did not

much care for circumstantial evidence, to say the very least.”



              In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), the United

States Supreme Court held that a state’s use of peremptory challenges to exclude

intentionally jurors of the defendant’s race violates the defendant’s Fourteenth

Amendment right to equal protection. The Court upheld this principle in Powers v.

Ohio, 499 U.S. 400, 111 S. Ct. 1364 (1991), but eliminated the requirement that the

defendant and the potential juror share the same race. The Court held that race was

“irrelevant to a defendant’s standing to object to the discriminatory use of peremptory

challenges.” Id. at 416, 111 S. Ct. at 1373. The Court subsequently held that

peremptory strikes based solely on gender are also constitutionally impermissible.

J.E.B. v. Alabama ex. rel T.B., 511 U.S. 127, 140, 114 S. Ct. 1419, 1427-28 (1994); see

State v. Turner, 879 S.W.2d 819, 821-23 (Tenn. 1994).



              A defendant seeking to raise a Batson claim has the initial burden of

making a prima facie showing of purposeful discrimination against a prospective juror.

Batson 476 U.S. at 93-94, 106 S. Ct. at 1721; State v. Ellison, 841 S.W.2d 824, 826

(Tenn. 1992). Our supreme court has held that in order to establish a prima facie case,

a defendant “must establish that a consideration of all the relevant circumstances raises

an inference of purposeful discrimination.” Woodson v. Porter Brown Limestone Co.,

916 S.W.2d 896, 902-03 (Tenn. 1996). Once the defendant establishes a prima facie

showing of purposeful discrimination, the burden shifts to the state to articulate a race-

neutral reason for the challenge. Batson, 476 U.S. at 97, 106 S. Ct. at 1723. The

state’s explanation “must be based on more than stereotypical assumptions, but it need

not rise to the level required to justify the exercise of a challenge for cause.” Ellison,

841 S.W.2d at 826; Batson, 476 U.S. at 97, 106 S. Ct. at 1723.



                                             14
              In ruling on an objection to the discriminatory use of a peremptory

challenge, the trial court must articulate specific reasons for each of its factual findings.

Woodson, 916 S.W.2d at 906. First, the court should explain why the objecting party

has or has not established a prima facie showing of purposeful discrimination. Then, if

the defendant has made a prima facie showing, the court must determine whether the

state gave a race-neutral explanation for the challenge and whether it finds, based on

the totality of the circumstances, that the challenge was the result of purposeful

discrimination. Id. “The trial court’s factual findings are imperative in this context. On

appeal, the trial court’s findings are to be accorded great deference and not set aside

unless clearly erroneous.” Id.



              In this case, the trial court did not explicitly state whether the defendant

made a prima facie showing of discrimination. In Woodson, our supreme court

concluded that the trial court had found that the objecting party made a prima facie

showing of purposeful discrimination, reasoning that if the objecting party had not made

a prima facie showing, the trial court would not have required an explanation for the

challenge. Id. at 905. In any event, the trial court in the present case concluded that

the state’s reason for challenging the prospective jurors was not discriminatory. The

defendant claims that the trial court only found that the state’s challenges were not

discriminatory with regard to race but made no finding concerning gender. We note

that the trial court stated that peremptory challenges could not be used to discriminate

on the basis of race or gender. Although the court did point out that the state did not

strike the African-Americans who replaced the potential jurors in question, we believe

the record reveals that the trial court’s finding of no discrimination applies to both race

and gender. The court accredited the prosecutor’s response that he challenged the

jurors based upon their lack of confidence in circumstantial evidence.




                                             15
               The defendant contends that the state’s reason was pretextual because

many jurors who were not stricken expressed similar reservations about circumstantial

evidence. The defendant downplays the four women’s distrust of circumstantial

evidence. Ms. Lee and Ms. Cage could not accept that circumstantial evidence could

be good evidence. Ms. Taylor stated that she would need proof beyond circumstantial

evidence. Ms. Akins declined to choose circumstantial evidence over questionable

direct evidence. Although some potential jurors indicated that they would have to

carefully weigh the circumstantial evidence, the remaining members of the venire

indicated that circumstantial evidence could be good evidence. The one remaining

potential juror who stated that direct evidence was better than circumstantial evidence

also said that he could believe circumstantial evidence. Based upon a careful

examination of the record before us, we cannot say that the trial court’s finding is clearly

erroneous.



                              IV. IMPROPER ARGUMENT

              The defendant contends that the state improperly commented upon the

defendant’s silence during its opening statement, its case-in-chief and its closing

argument. The defendant also argues that the state improperly appealed to the jury’s

sympathy during closing argument. The state contends that the defendant

mischaracterizes the prosecutor’s analysis of the evidence as commenting upon the

defendant’s silence. The state also asserts that even if the prosecutor’s reference to

the victim’s family could be considered a victim impact argument, it is harmless error at

most.



              The state initially contends that the defendant has waived these issues by

failing to object contemporaneously or to raise the issues in his motion for a new trial.

The defendant argues that because his right against self-incrimination under the Fifth

Amendment is a fundamental right, the failure to make a contemporaneous objection



                                            16
does not bar this court’s consideration of the issue of whether the state improperly

commented upon the defendant’s silence. With regard to the prosecutor’s alleged

appeal to the jury’s sympathy, the defendant contends that the trial court has a duty to

insure sua sponte that closing arguments are appropriate, and the improper argument

constitutes plain error. Failure to object contemporaneously to improper argument

constitutes a waiver pursuant to Rule 36(a), T.R.A.P. Furthermore, errors related to the

misconduct of counsel must be presented in the motion for a new trial to be preserved

for our review. T.R.A.P. 3(e). This court has previously held that the issue of whether

the state improperly commented upon a defendant’s failure to testify was waived when

it was not included in the motion for a new trial. State v. Hix, 696 S.W.2d 22, 26 (Tenn.

Crim. App. 1984). Thus, we will review these issues to determine if plain error exists.

See Tenn. R. Crim. P. 52(b).



                 A. COMMENTS UPON THE DEFENDANT’S SILENCE

              The defendant cites four points in the record in which he characterizes the

prosecutor’s remarks or the testimony solicited as a comment upon the defendant’s

refusal to answer questions from the investigating officer after the Miranda warnings

were given. When a defendant elects not to testify at trial, a prosecutor may not

comment upon the defendant’s failure to make a statement to the police because this

would punish the defendant for exercising his or her constitutional right to remain silent.

Braden v. State, 534 S.W.2d 657, 659-60 (Tenn. 1976). The United States Supreme

Court has held that it is “impermissible to penalize an individual for exercising his Fifth

Amendment privilege when he is under police custodial interrogation. The prosecution

may not, therefore, use at trial the fact that [a defendant] stood mute or claimed his

privilege in the face of accusation.” Miranda v. Arizona, 384 U.S. 436, 468, 86 S. Ct.

1602, 1625 (1966). A prosecutor may comment upon the defendant’s veracity when

the comment is supported by evidence in the record. State v. West, 767 S.W.2d 387,

394 (Tenn. 1989); State v. Beasley, 536 S.W.2d 328, 330 (Tenn. 1976).



                                             17
             The defendant asserts that the prosecutor commented upon the

defendant’s silence when the prosecutor related in the opening statement that the

defendant admitted driving but did not know how the accident occurred:

                    During the course of the evening, police officers spoke
             to the defendant a number of times. And each time, he told
             them a very, very different story. The first time officers spoke
             to the defendant at the scene, the defendant said, police were
             chasing us, we were running from the police and crashed.
             That wasn’t true.

                    He spoke with the police a second time, he said a car
             pulled out in front of us, and he pulled out of a gas station, it
             ran us off the road. That wasn’t true.

                     He spoke to the police a third time, he said yes, [I] have
              been drinking, but it doesn’t matter, I wasn’t driving. She was
              driving. Helen Hollis was driving. That wasn’t true.

                     Finally, the defendant told the truth. He said to the
             officers, he was driving. He said, he didn’t remember how the
             crash occurred. That’s what happened.

The defendant claims the underlined section is a comment on his silence. We do not

view the statement that the defendant admitted driving to relate to the defendant’s

failure to give a statement to the police. Instead, the prosecutor simply pointed out to

the jury which of defendant’s statements to the police should be believed. This portion

of the statement was proper.



             The reference to the defendant not remembering how the crash occurred

relates to the responses that the defendant gave Officer Davidson after the officer

advised the defendant of his Miranda rights. The defendant also challenges this portion

of Officer Davidson’s testimony, which was as follows:

                   PROSECUTOR: [About three hours after the wreck,]
             you once again questioned the defendant about the collision?

                    DAVIDSON: Yes sir. At that time, I advised him of his
             constitutional rights and I asked him if he could tell me what
             happened--well, I asked him, did he understand his rights? He
             shook his head, yes, that he did.

                     I asked him, could he tell me what happened in the
             collision? He shook his head, no. I said, can you tell me who



                                             18
             was driving or what happened? And he again, shook his head,
             no.

The defendant characterizes the negative head shake as a refusal to make a

statement. The state contends that the defendant’s responses were not a refusal to

answer but rather were voluntary answers to the officer’s questions made after the

defendant had been informed of his constitutional rights and had indicated that he

understood those rights. When a defendant voluntarily makes a statement after being

informed of his or her constitutional rights, the state may comment upon the scope of

that statement. See Ware v. State, 565 S.W.2d 906, 908 (Tenn. Crim. App. 1978). It is

unclear whether the defendant’s responses to Officer Davidson’s questions constituted

answers to those questions or a refusal to answer. In any event, even if the responses

were a refusal to make a statement, thereby making Officer Davidson’s testimony and

the prosecutor’s reference to that testimony comments upon the defendant’s silence,

we believe this error to be harmless beyond a reasonable doubt in light of the remaining

evidence supporting the defendant’s guilt.



             The defendant also contends that the following statement made by the

state during its closing argument constitutes a comment upon the defendant’s silence:

                    Has the defense given you any reasonable explanation
             [about] how the defendant ended up in the driver’s seat and
             Helen Hollis ended up in the passenger’s seat seconds after
             a viable, (sic) high impact front-end collision? They haven’t.

This court has held that comments indicating that the state’s proof remains

uncontradicted do not implicate the defendant’s choice not to testify. Thompson v.

State, 958 S.W.2d 156, 168 (Tenn. Crim. App. 1997) (reviewing the failure to object to

the state’s argument that the defendant had offered no defense to the crime); State v.

Thomas, 818 S.W.2d 350, 364 (Tenn. Crim. App. 1991) (analyzing the state’s comment

that “there’s no other reasonable explanation, none given”); State v. Blackmon, 701

S.W.2d 228, 233 (Tenn. Crim. App. 1985) (analyzing the state’s argument that the

defendant had offered no “excuse or justification” for his escape); State v. Coury, 697



                                             19
S.W.2d 373, 378 (Tenn. Crim. App. 1985). The state’s argument that the defendant

failed to explain his and the victim’s positions immediately after the accident is of this

nature. It was proper argument.



              Finally, the defendant asserts that the state commented upon his silence

during its rebuttal argument by referring to his lack of remorse:

                      The medical personnel finally get there. They have to
              use the jaws of life to pry the car open. What is the first thing
              Shawn Cotton does? Is he wondering how this person here
              [that] is just barely hanging on to her life [is] doing? Does he
              see if she needs help? No. He climbs from the driver’s seat
              over her body to the passenger’s seat to get out. No remorse
              whatsoever for a person laying next to him dying.

              ....

                     Let’s talk about the defendant on April 2, 1996. We do
              know that from the get-go there was one statement, he denied
              driving. We do know that he asked numerous times about his
              car. He was very upset that his car was totaled out. Did we
              hear any statements that he made concerning the welfare of
              the passengers in the car? Nothing. All we heard [were] his
              concerns about his car trying to shift the burden . . . away from
              himself.

The state contends that these were comments about the defendant’s demeanor and

conduct shortly after the accident, and they are relevant to the defendant’s intoxication,

an element of the crime. A prosecutor may properly base his or her argument upon

inferences supported by evidence in the record. See State v. Brown, 836 S.W.2d 530,

552 (Tenn. 1992). We view these remarks to be an evaluation of the defendant’s

demeanor based upon evidence in the record.



                                      B. SYMPATHY

              The defendant contends that the state appealed to the jury’s sympathy by

referring to the presence of the victim’s family during its closing argument. Our

supreme court has recognized that closing argument is a valuable privilege for both the

state and the defense and that counsel is afforded wide latitude in presenting final

argument to the jury. See State v. Cribbs, 967 S.W.2d 773, 783 (Tenn. 1998); State v.


                                             20
Cone, 665 S.W.2d 87, 94 (Tenn. 1984). When a prosecutor’s argument goes beyond

the latitude afforded, the test for determining if reversal is required is whether the

impropriety “affected the verdict to the prejudice of the defendant.” Harrington v. State,

215 Tenn. 338, 340, 385 S.W.2d 758, 759 (1965). Factors relevant to that

determination include:

              1. The conduct complained of viewed in context and in light of
              the facts and circumstances of the case.

              2. The curative measures undertaken by the court and the
              prosecution.

              3. The intent of the prosecutor in making the improper
              statement.

              4. The cumulative effect of the improper conduct and any
              other errors in the record.

              5. The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).




              The prosecutor concluded his closing argument as follows:

                      We don’t know much about Helen Hollis. We don’t
              know what sort of daughter she was to her parents. We don’t
              know what sort of friend she was to the people she worked
              with. We don’t know what sort of mother she was to her son.
              But we do know this, there were people who loved her, they’re
              here in the courtroom today, her mother and her step-father.
              And they’ve been present for every moment, they’ve heard
              every word that was uttered. And for them, this is the most
              important criminal case in the world. And I know you will give
              it the consideration it deserves.

While we view the reference to the importance of the case to the victim’s parents to be

inappropriate, we conclude that it did not affect the verdict to the defendant’s prejudice.

The context of the statement indicates that it was made to impress upon the jury the

importance of their deliberations. Considering the trial court’s instruction to the jury that

the attorneys’ arguments were not evidence and the strength of the evidence against

the defendant, we hold that the statement did not affect the verdict to the defendant’s

prejudice.


                                             21
                          V. CUMULATIVE EFFECT OF ERROR

              The defendant argues that the cumulative effect of the foregoing errors

deprived him of a fair trial. We believe that the trial court’s errors are of such an

inconsequential nature that no cumulative error exists.



              In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.




                                                  Joseph M. Tipton, Judge




CONCUR:



James Curwood W itt, Jr., Judge



John Everett Williams, Judge




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