        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 26, 2013

            STATE OF TENNESSEE v. SHAWN ANTHONY JONES

              Direct Appeal from the Criminal Court for Greene County
                     No. 09CR398      John F. Dugger, Jr., Judge


               No. E2012-00480-CCA-R3-CD-FILED-AUGUST 9, 2013


A Green County Criminal Court Jury convicted the appellant, Shawn Anthony Jones, of one
count of first degree premeditated murder, three counts of first degree felony murder, and one
count of attempted first degree premeditated murder. The trial court merged the murder
convictions and sentenced the appellant to life. After a sentencing hearing, the trial court
sentenced the appellant to twenty-five years for the attempted murder conviction and ordered
that he serve the sentence consecutively to the life sentence. On appeal, the appellant
contends that the trial court erred by (1) allowing the State to introduce into evidence unduly
prejudicial photographs of the victims, (2) failing to suppress his statements to police, (3)
refusing to allow him to show that a co-defendant told police she kicked open the door to the
victims’ home, and (4) failing to grant his motion for a mistrial when the prosecutor
commented on his failure to testify. Based upon the record and the parties’ briefs, we affirm
the judgments of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                                     Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.

T. Wood Smith, Greeneville, Tennessee, for the appellant, Shawn Anthony Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; C. Berkeley Bell, District Attorney General; and Cecil C. Mills, Jr., and Ritchie
Dale Collins, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background
      In November 2010, the Greene County Grand Jury indicted the appellant for first
degree premeditated murder, first degree felony murder committed in the perpetration of
robbery, first degree felony murder committed in the perpetration of burglary, and first
degree felony murder committed in the perpetration of theft for the death of Jimmy Lee
Cutshall. The grand jury also indicted the appellant for attempted first degree premeditated
murder for injuries sustained by Mr. Cutshall’s wife, Rhonda Cutshall.

        The appellant does not contest the sufficiency of the evidence. Taken in the light most
favorable to the State, the evidence at trial shows that on the evening of October 12, 2009,
the appellant and his girlfriend, Jessica Myers, went to the Cutshall home to buy Xanax.
While they were there, Mrs. Cutshall argued with Myers and accused Myers of stealing her
prescription pills. Mrs. Cutshall found a bottle of her pills in the appellant’s Jeep, and the
Cutshalls ordered the appellant and Myers to leave. The appellant replied, “We’ll be back.”
In the early morning hours of October 13, 2009, Mr. Cutshall was lying on the couch in the
living room while Mrs. Cutshall was asleep in the back bedroom of their single-wide mobile
home. Chastity Renner, the girlfriend of Jimmy Cutshall’s son, was sleeping in the back
bedroom with Mrs. Cutshall. About 5:00 a.m., Renner received a telephone call from Mr.
Cutshall’s son and went into the bathroom to talk with him so that she would not disturb
anyone. As soon as Renner shut the bathroom door, she heard “a big boom” and Jimmy
Cutshall screaming. A few minutes later, Renner heard Mrs. Cutshall screaming. Renner
called 911, hid in the bathroom, and waited for the police.

       When officers arrived at the scene, they found Mr. Cutshall lying on the living room
floor by the front door. He had been shot multiple times in the face, shoulder, neck, stomach,
and right leg and was deceased. Mrs. Cutshall was lying on the floor in the back bedroom.
She had been shot in the head but was alive and asked the officers what happened.
Numerous .22 caliber spent shell casings were on the floor in the living room and the
bedroom. Renner came out of the bathroom and later reported to police that Mrs. Cutshall
had argued with the appellant and Myers the previous evening. Based on Renner’s
information, officers interviewed the appellant on October 13 and 14.

        The appellant gave six statements. In his first statement, he claimed that on October
11, 2009, someone named Matthew Blake came to his home and tried to sell him “a rifle with
a squirrel on the stock.” Mrs. Cutshall and “another girl” were with Blake. The appellant
fired the gun but did not buy it and was worried that Blake may have “planted” the rifle
inside or outside of the appellant’s house. In his second statement, the appellant said that on
October 12, 2009, he and Myers went to the Cutshall home, and Mrs. Cutshall accused Myers
of stealing Xanax from her. The appellant and Myers bought pills from Mrs. Cutshall but
did not argue with her. In the appellant’s third statement, he said that about 4:00 a.m. on
October 13, 2009, Blake and Myers told him that they were going to Mrs. Cutshall’s home

                                              -2-
to get pills. They left in the appellant’s Jeep and returned about 6:00 a.m. Blake showed the
appellant a Florida prescription written to Mrs. Cutshall, and Myers told the appellant that
she kicked in the Cutshalls’ door. Myers also told the appellant that Blake “led in shooting,”
that Myers hit Mrs. Cutshall with a tire tool, and that Blake shot Mrs. Cutshall.

        In the appellant’s fifth statement,1 he said that about 6:00 p.m. on October 12, he and
Myers went to Mrs. Cutshall’s house to buy pills. Myers stole a bottle of pills from Mrs.
Cutshall, and Mrs. Cutshall found the pills in the appellant’s Jeep. Mrs. Cutshall sold pills
to the appellant and Myers but told them never to come back. The next morning, the
appellant, Myers, and someone named Chad Rader decided to rob the Cutshalls. The
appellant dropped off Myers and Rader near the Cutshall home. About forty-five minutes
later, Rader telephoned the appellant, and the appellant picked them up. Myers was carrying
a pocketbook containing money and pills, and Rader had a gun. Rader told the appellant that
he “had to shoot them.” The appellant, Myers, and Rader returned to the appellant’s house,
divided the pills and money, and hid the gun in a closet. Later that day, Myers spoke with
Rader on the telephone and told him to “get the gun and do something with it.” In the
appellant’s sixth statement, he said that he, Myers, and Rader went to the Cutshall home to
commit a robbery. Rader drove the appellant’s Jeep and dropped off the appellant and
Myers. The appellant and Myers were wearing masks and gloves, and Myers had a .22
caliber rifle. The appellant kicked open the Cutshalls’ front door, Myers shot Mr. Cutshall,
and the appellant ran to the back bedroom where Mrs. Cutshall was sleeping. He grabbed
her pocketbook, ran, and heard more gunshots. The appellant returned to the Jeep, and
Myers got to the Jeep fifteen minutes later. Myers told the appellant that she thought the
Cutshalls were dead.

       The police searched Rader’s property and found a .22 caliber rifle with a squirrel on
the stock hanging in a pine tree. Tests revealed that the rifle fired the spent shell casings
found in the victims’ home. Officers searched the appellant’s house and found four boxes
of .22 caliber ammunition and a plastic bag containing wet clothes, shoes, gloves, and a
mask. Gunshot residue and blood from the victims was on some of the clothing. A search
of the appellant’s Jeep revealed two toboggan-style masks, a Walmart receipt, and a .22
caliber shell casing. On October 13, 2009, Myers’ mother brought a pocketbook to the
Greene County Sheriff’s Department. Although the pocketbook belonged to Myers, it
contained cards, identification, and a Florida prescription belonging to Mrs. Cutshall.

        The jury convicted the appellant of all five counts as charged. The trial court merged


        1
         The appellant’s fourth statement was audio-recorded, and the State played the recording for the jury.
No witnesses testified about the contents of the recording, and the recording has not been included in the
appellate record for our review.

                                                     -3-
the murder convictions and sentenced the appellant to life. After a sentencing hearing, the
trial court sentenced the appellant to twenty-five years for the attempted murder conviction,
a Class A felony, and ordered that he serve it consecutively to the life sentence.

                                         II. Analysis

                                       A. Photographs

       The appellant contends that the trial court erred by allowing the State to introduce into
evidence prejudicial photographs of the victims. Specifically, the appellant challenges the
admissibility of exhibit 24, showing Mr. Cutshall lying on the living room floor with a
gunshot wound beside his right ear; exhibit 25, showing a close-up view of the wound; and
exhibit 38, showing Mrs. Cutshall with a bloody face and shirt, lying on her back in the
bedroom. The State contends that the trial court properly admitted the photographs. We
agree with the State.

        Before trial, the appellant filed a motion to suppress numerous photographs, including
the photographs at issue. In a pretrial hearing, counsel for the appellant, Myers, and Rader
argued that the probative value of the “bloody, gruesome” photographs was outweighed by
their prejudicial effect and “would just inflame the passion of the jury.” Regarding exhibit
24, the trial court ruled that the photograph was relevant to show the location of Mr.
Cutshall’s body when the police found him. Regarding exhibit 25, the trial court ruled that
the photograph, which included Mr. Cutshall’s face, was relevant to show the stippling
around his gunshot wound. However, the trial court ordered that the State crop the
photograph to leave only the wound and a line of blood running downward from the wound.
Regarding exhibit 38, the trial court ruled that the photograph was relevant to show Mrs.
Cutshall’s injuries. The trial court noted that “[i]t’s a murder case. You’re going to have
some blood” and concluded that the probative value of the photographs was not substantially
outweighed by the danger of unfair prejudice. Thus, the trial court held that the photographs
were admissible.

       The decision regarding the admissibility of photographs lies within the sound
discretion of the trial court and that ruling will not be overturned on appeal absent a clear
showing of an abuse of that discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978);
State v. Lacy, 983 S.W.2d 686, 694 (Tenn. Crim. App. 1997). In order to be admitted as
evidence, a photograph must be relevant to an issue at trial. Tenn. R. Evid. 402; State v.
Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). Relevant evidence is “evidence


                                              -4-
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. However, even relevant photographs may be excluded if
their probative value is substantially outweighed by the danger of unfair prejudice to the
defendant. Tenn. R. Evid. 403; Banks, 564 S.W.2d at 951.

         We conclude that the trial court did not err by admitting the photographs into
evidence. The first photograph shows the upper half of Mr. Chutshall’s body. Mr. Cutshall
is lying on his stomach on the floor with his face turned toward the camera. A bullet hole
is just below his right ear with a line of blood running down his cheek to his mouth. A large
amount of blood is underneath his head. We agree with the trial court that the photograph
is relevant to show the position and the condition of the victim’s body when the police found
it. While the photograph shows the gunshot wound and blood underneath the victim’s head,
the wound is a clearly-defined hole and is not particularly gruesome. The second photograph
shows a close-up of the wound in the previous photograph with stippling around the wound.
It is relevant to support testimony at trial that the wound was a close-contact wound and also
is not particularly gruesome. The third photograph shows the upper half of Mrs. Cutshall
lying on her back in the bedroom. Her face is swollen, blood is on her forehead and
underneath her nose, and blood is on the upper half of her t-shirt. Her right eye is open.
Again, the photograph is relevant to show the victim’s injuries and is not particularly
gruesome. Therefore, we conclude that the trial court properly ruled that the probative value
of the photographs was not substantially outweighed by the danger of unfair prejudice and
that the appellant is not entitled to relief.

                            B. Motion to Suppress Statements

       Next, the appellant contends that the trial court erred by denying his motion to
suppress his statements to police because he was intoxicated from prescription pills when he
gave the statements. The State contends that the trial court properly denied the motion to
suppress. We agree with the State.

       Before trial, the appellant filed a motion to suppress his statements, arguing that he
was intoxicated when he gave them and unable to waive his constitutional rights. At the
suppression hearing, Detective Sergeant Mike Fincher of the Greene County Sheriff’s
Department (GCSD) testified that he spoke with the appellant at 8:15 a.m. on October 13,
2009, and gave the appellant Miranda warnings from the sheriff department’s standard
waiver of rights form. Lieutenant Jim Ellison also was present, and the appellant signed the


                                             -5-
form. The detective asked the appellant questions about his name, sex, race, date of birth,
address, telephone number, social security number, place of employment, next of kin, and
next of kin’s telephone number, and the appellant gave a statement. Detective Fincher said
the appellant did not seem to be intoxicated, was awake, and was able to answer his
questions. Detective Fincher did not make any promises to the appellant in return for his
statement and did not threaten him.

       On cross-examination, Detective Fincher testified that he did not know the appellant
prior to the interview and that he “didn’t notice anything really outstanding” about the
appellant. The appellant was polite and cooperative but did not show much expression.
Detective Fincher did not remember the appellant’s telling him that the appellant had
consumed narcotics, and Detective Fincher did not ask the appellant about drugs. The
interview was not recorded and was brief. At some point, Detective Danny Ricker arrived
and took over the interview. Detective Fincher acknowledged that the appellant could have
had drugs “in his system” at the time of the interview.

       On redirect examination, Detective Fincher testified that the appellant responded to
his questions appropriately. The officer did not recall the appellant’s having slurred speech.

       Detective Danny Ricker of the GCSD testified that the appellant already had received
Miranda warnings when he began interviewing the appellant. He said that the appellant
“appeared coherent, fine” and that he understood the appellant. About one and one-half
hours later, Detective Ricker took the appellant’s second statement. Nothing about the
appellant had changed since his first interview. Detective Ricker took the appellant’s third
statement about lunchtime, and the appellant appeared to understand the officer’s questions.
Detective Ricker interviewed the appellant again about 5:00 p.m. Prior to taking the
statement, Detective Ricker read another waiver of rights form to him. Detective John
Huffine also was present. The appellant signed the form and did not appear to be intoxicated.
The appellant’s speech was coherent, and he responded to the officer’s questions
appropriately. The appellant never refused to answer the officer’s questions and gave a two-
page written statement. Detective Ricker did not make any promises to the appellant in
return for his statement or threaten him.

       On cross-examination, Detective Ricker testified that when he began interviewing the
appellant on October 13, Detectives Fincher and Ellison were already in the process of
interviewing him. The appellant’s first interview may have lasted one hour, and Detective
Ricker did not recall asking the appellant if he had ingested any drugs within the previous


                                             -6-
twenty-four hours. The appellant’s second interview with the detective also may have lasted
one hour, his third interview lasted one to one and one-half hours, and his fourth interview
lasted one to two hours. Defense counsel asked the officer, “And during any of these
interviews did you ask him what substances he had ingested in the day or so before the
interviews?” Detective Ricker answered, “I know that there was mention of Xanaxes and
maybe Oxys but the night before all this happened.” Detective Ricker acknowledged that
although some of the appellant’s statements mentioned buying pills, the statements did not
mention consuming pills.

       Detective Captain John Huffine of the GCSD testified that at 11:20 a.m. on October
13, the appellant gave consent to search his Jeep and signed a consent to search form. The
appellant appeared to understand what he was doing. On cross-examination, Detective
Huffine testified that he did not think he told the appellant that he could obtain a search
warrant even if the appellant did not sign the consent to search form.

       Greene County Sheriff Steve Burns testified that on the morning of October 13, he left
the crime scene and drove to a residence where he thought he could find the appellant and
Myers. As he approached the home, the appellant’s Jeep turned into the driveway. Sheriff
Burns followed the Jeep and got out of his vehicle. The appellant was driving the Jeep, and
Myers was a passenger. Sheriff Burns asked them to accompany him to the sheriff’s
department, and the appellant, driving his Jeep, followed Sheriff Burns to the department.
Sheriff Burns would not have allowed the appellant to drive if he had thought the appellant
was under the influence of drugs or alcohol.

       On cross-examination, Sheriff Burns testified that he located the appellant and Myers
about 7:00 a.m. He said that he was about eight to ten feet from the appellant, that the
appellant and Myers were very cooperative, and that they did not question why he wanted
them to follow him to the sheriff’s department. He said that the appellant “carried on a very
reasonable conversation, no problems at all, no resistance” and that the appellant “was very
normal in everything I did see.”

       The then thirty-three-year-old appellant testified that he completed the eleventh grade
and could read and write but not very well. Defense counsel asked if he remembered
speaking with Sheriff Burns on October 13, and the appellant said, “Not really, no.” He said
that during the twenty-four hours before he talked with the police, he consumed eight to ten
two-milligram Xanax pills and three to six thirty-milligram Roxycontin pills. Taking Xanax
caused him to have memory loss, but he could still drive a car. He said that taking a mixture


                                             -7-
of Xanax and Roxycontin caused him to be unable to remember “much of anything.” He said
that the signatures on his statements appeared to be his signatures but that he did not
remember much about the morning of October 13, including his speaking with Detective
Huffine. He said that he remembered talking with Detective Ricker but that he did not
remember everything they said. He said that he woke up in the “drunk tank” about three days
later and that he did not understand what he was signing when he signed the consent to
search form. He said he would not have signed his statements if he had understood what he
was signing.

       On cross-examination, the appellant acknowledged that he signed a waiver of rights
form thirteen years prior to the suppression hearing and that he was an adult when he signed
the form. He acknowledged that he responded to the officers’ questions in this case.

       The trial court noted that Sheriff Burns did not notice anything unusual about the
appellant and that he allowed the appellant to drive to the sheriff’s department. The court
stated that the appellant’s statements were “detailed with many facts” and that all of the
officers said the appellant “appeared to be fine.” The appellant responded to the officers’
questions, appeared to understand what he was doing, and was cooperative. The trial court
ruled that the appellant knowingly and voluntarily gave his statements to police.

        In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the
State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence
adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, we note that “in
evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate
courts may consider the proof adduced both at the suppression hearing and at trial.” State
v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

      The Fifth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution generally provide a privilege against self-incrimination to individuals
accused of criminal activity, thus necessitating our examination of the voluntariness of a


                                              -8-
statement taken during custodial interrogation. State v. Callahan, 979 S.W.2d 577, 581
(Tenn. 1998). Specifically, for a confession to be admissible, it must be “‘free and voluntary;
that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct
or implied promises, however slight, nor by the exertion of any improper influence.’” State
v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (quoting Bram v. United States, 168 U.S. 532,
542-43 (1897)). We note that if, prior to making a statement, the police inform the accused
of his Miranda rights and the accused proceeds to knowingly and voluntarily waive those
rights, the statement is then admissible against the accused due to the valid waiver of the
privilege against self-incrimination. Callahan, 979 S.W.2d at 581 (citing Miranda v.
Arizona, 384 U.S. 436, 444-45 (1966)). In reviewing a trial court’s ruling on a motion to
suppress, we will uphold the trial court’s findings of fact unless the evidence preponderates
otherwise. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001).

       “In determining whether a confession has been made knowingly and voluntarily,
courts must look to the totality of the circumstances.” State v. Smith, 42 S.W.3d 101, 109
(Tenn. Crim. App. 2000). Accordingly, we consider the following factors in determining the
voluntariness of a confession: the appellant’s age; education or intelligence level; previous
experience with the police; the repeated and prolonged nature of the interrogation; the length
of detention prior to the confession; the lack of any advice as to constitutional rights; the
unnecessary delay in bringing the appellant before the magistrate prior to the confession; the
appellant’s intoxication or ill health at the time the confession was given; deprivation of
food, sleep, or medical attention; any physical abuse; and threats of abuse. See State v.
Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996).

       Turning to the instant case, the trial court obviously accredited the officers’ testimony
over that of the appellant. The officers testified that the appellant signed the waiver of rights
forms, was cooperative, and answered their questions. The appellant appeared to understand
what he was doing and did not appear to be under the influence of any drugs. Sheriff Burns
even allowed the appellant to drive to the sheriff’s department. As noted by the trial court,
although the appellant claimed at the hearing that he was so intoxicated by drugs that he
could not remember what happened on October 13, his statements about the crimes and the
events leading up to the crimes were very detailed. Thus, the evidence does not preponderate
against the trial court’s findings, and we conclude that the trial court correctly denied the
appellant’s motion to suppress.

                                C. Co-defendant’s Statement



                                               -9-
       The appellant contends that the trial court erred by refusing to allow him to show that
Myers said in her statement to police that she kicked in the door to the victims’ trailer. The
State contends that the appellant is not entitled to relief. We agree with the State.

        At trial, Detective Ricker testified about the contents of the appellant’s first, second,
third, and fifth statements. At the conclusion of his testimony, the jury left the courtroom,
and defense counsel stated as follows:

               Detective Ricker . . . took a statement from co-defendant Jessica
               Myers. In that statement . . . , Jessica Myers told Detective
               Ricker that she kicked the door in. That is exculpatory to the
               defendant obviously. It is inculpatory to Jessica Myers, it’s
               against penal interest and I would like permission to ask him if
               that is the information that he received from her without opening
               the door for her entire statement to [be] brought into evidence.
               I’m not going to ask him anything else.

The trial court ruled that Myers’ statement was hearsay and that the appellant was trying to
“cherry-pick” Myers’ statement. The trial court held that if the appellant wanted to ask
Detective Ricker about a portion of Myers’ statement, then “the whole statement would come
in.” Defense counsel acknowledged that he did not want the entire statement to be
admissible, so the trial court denied his request to question Detective Ricker about a portion
of Myers’ statement. Defense counsel asked to make an offer of proof, and Detective Ricker
testified outside of the jury’s presence that Myers said in her statement, “I kicked the front
door in.”

         Our supreme court has stated that generally, “questions concerning the admissibility
of evidence rest within the sound discretion of the trial court, and this Court will not interfere
in the absence of abuse appearing on the face of the record.” Pylant v. State, 263 S.W.3d
854, 870 (Tenn. 2008). Hearsay is defined as “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 a general rule, hearsay is not admissible during
a trial, unless the statement falls under one of the exceptions to the rule against hearsay. See
Tenn. R. Evid. 802.

       We conclude that the trial court properly denied the appellant’s request to question
Detective Ricker about a portion of Myers’ statement. Initially, we disagree with the


                                              -10-
appellant’s claim that Myers’ statement about her kicking in the door was exculpatory to him.
In any event, the trial court correctly determined that Detective Ricker’s testimony would
have been hearsay, and the appellant does not claim on appeal that Myers’ statement falls
within any exception to the hearsay rule. Therefore, we conclude that the trial court did not
err by refusing to allow the appellant to question Detective Ricker about Myers’ statement.

                              D. Appellant’s Failure to Testify

        Finally, the appellant contends that the trial court erred by failing to grant his request
for a mistrial when the prosecutor commented about his failure to testify. The State argues
that the appellant waived the issue for failing to make a contemporaneous objection and that
the error, if any, does not rise to the level of plain error. We conclude that the trial court did
not err by denying the request for a mistrial.

       During closing arguments, defense counsel stated as follows:

               You won’t hear any evidence, you didn’t hear any evidence that
               it was an execution-style shooting. What did you see from --
               what you can see from Detective Morgan’s testimony is that
               there was a scuffle of some kind in the living room, things were
               turned over, chairs pushed across the room. Disarray was the
               word that he used, I think. And what that indicates is that there
               was a fight, there was a struggle. If someone ever broke in my
               house, I hope I would fight back too, like Jimmy Cutshall
               obviously did. But what that doesn’t tell us is that he was laying
               there and somebody shot him six times. It’s more reasonable,
               under the evidence that you have, to assume that there was a
               struggle and he got shot.

During the State’s rebuttal closing argument, the prosecutor said,

                       The defendant is responsible for this shooting. Would
               this death have ever occurred if it had just been one? If one had
               said I’m not going, you’re all by yourself? No. These two --
               these three needed each other to work together, pump each other
               up. Is he less responsible if he was not the shooter? Is he any
               less responsible for the death of Jimmy Lee Cutshall? Was there


                                              -11-
               some kind of accident in this killing? Was there some kind of
               self-defense that I haven’t heard about? Was one of the two that
               went in this home merely the bullet and the other one was the
               one that pointed it? I want to say right now, he’s responsible.

       After the trial court gave the jury charge and the jury left the courtroom, defense
counsel asked for a mistrial “on the basis that during his closing argument, [the prosecutor]
made an impermissible comment about the defendant’s right not to testify when he said, and
I quote, ‘Was there some kind of self-defense I haven’t heard about.’” The trial court noted
that counsel failed to make a contemporaneous objection and ruled that the prosecutor was
not making a “direct reference” to the appellant’s failure to testify. The trial court held that
the prosecutor did not say anything prejudicial and denied the appellant’s motion for a
mistrial.

        On appeal, the appellant maintains that the State impermissibly commented on his
failure to testify. He contends that he did not make a contemporaneous objection to the
comment because objecting would have alerted the jury to the fact that he had not testified.
The State claims that the prosecutor was responding to defense counsel’s closing argument
and that any error does not constitute plain error.

       It is constitutionally impermissible for a prosecutor to comment upon the accused’s
silence during the course of trial. State v. Transou, 928 S.W.2d 949, 960 (Tenn. Crim. App.
1996). However, we agree with the trial court that the prosecutor was not commenting on
the appellant’s failure to testify. In our view, the prosecutor was responding to defense
counsel’s argument that the shooter accidentally shot Mr. Cutshall during a struggle. We
note that during defense counsel’s closing argument, he went on to say, “The Judge will tell
you that even though Shawn Jones didn’t testify, he is still presumed to be innocent.”
Therefore, it was defense counsel, not the prosecutor, who directly commented on the
appellant’s failure to testify. Regardless, assuming arguendo that the prosecutor’s statement
could be construed as an indirect reference to the appellant’s failure to testify, the trial court
gave the following instruction during the jury charge:

                       The defendant has not taken the stand to testify as a
               witness, but you shall place no significance on this fact. The
               defendant is presumed innocent, and the burden is on the State
               to prove his guilt, beyond a reasonable doubt. He is not required
               to take the stand in his own behalf and his election not to do so


                                              -12-
               cannot be considered for any purpose against him, nor can any
               inference be drawn from such fact.

We generally presume that a jury has followed the trial court’s instructions. See State v.
Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994). Moreover, given the proof against
the appellant, any error was harmless. See Tenn. R. App. P. 36(a).

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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