           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                  Assigned on Briefs June 7, 2005

                     STATE OF TENNESSEE v. CURTIS PALMER

                    Direct Appeal from the Criminal Court for Shelby County
                           No. 03-04188   James C. Beasley, Jr., Judge



                    No. W2004-01748-CCA-R3-CD - Filed December 9, 2005


Following a jury trial, Defendant, Curtis Palmer, was convicted of first degree felony murder in the
perpetration of aggravated burglary in count one of the indictment and first degree felony murder in
the perpetration of theft of property in the second count, and was sentenced to life imprisonment
without the possibility of parole. The trial court merged Defendant’s conviction for felony murder
in count two into his conviction for felony murder in count one. In his appeal, Defendant argues (1)
that the evidence is insufficient to support his conviction on the charge of felony murder; (2) that he
was denied his right to a speedy trial; (3) that the trial court erred in denying his motions to suppress;
(4) that the trial court erred in its evidentiary rulings; (5) that the trial court erred in failing to instruct
the jury on voluntary manslaughter as a lesser included offense of the charged offenses; and (6) that
the prosecution engaged in prosecutorial misconduct during closing argument. After a thorough
review of the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES, J., joined.
JOSEPH M. TIPTON , J., filed a concurring opinion.

Mark Mesler, Memphis, Tennessee, for the appellant, Curtis Palmer.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William L. Gibbons, District Attorney General; Phillip Gerald Harris, Assistant District Attorney
General; and Patience Branham, Assistant District Attorney General, for the appellee, the State of
Tennessee.

                                                 OPINION

I. Trial

      Patrice Johnson and the victim, Patricia Miller, were friends and worked together at the
Regional Medical Center in Memphis. Ms. Johnson said that she received a call from the medical
center on January 1, 2002, because the victim had not reported to work that morning. Concerned,
Ms. Johnson drove to the victim’s home and found a door near the carport cracked open. Ms.
Johnson called the police. Officers found the victim dead inside her home.

        Carmalita Harris, the victim’s daughter, said she stayed with a friend on New Year’s Eve and
spoke with her mother by telephone around 12:45 a.m. on January 1, 2002. Ms. Harris said that the
victim owned three car speakers and an amplifier which she was attempting to sell. The speakers
were white, black, and red, and the material on the face of one of the speakers was torn. Ms. Harris
identified the speakers found in Defendant’s car as her mother’s.

       Ms. Harris said she inspected her bedroom after the victim was discovered. She found
various items on her bed which were not there the day before, and a bullet hole in the ceiling. Her
bedroom window was raised, and the air conditioner had been removed.

        Officer Willie Mathena with the Memphis Police Department responded to the call from Ms.
Johnson. Officer Mathena found the victim lying on the floor in the den. In Ms. Harris’ bedroom,
Officer Eric Freeman found a “bullet strike” on a bedside table, and noticed that the air conditioner
had been taken out of the bedroom window. There was a bullet hole in the ceiling. A bullet
fragment was found near the victim, and a second bullet fragment and three shell casings were found
in the den.

        Sergeant Gerald Crowson and Sergeant Todd Pierce, with the Southhaven, Mississippi Police
Department, observed Defendant drive his Chevy Caprice into a Blockbuster parking lot around 6:00
p.m. on January 1, 2002. Defendant went inside the Blockbuster store. Sergeant Pierce asked
Defendant to step outside the store so he could ask him a few questions. Sergeant Pierce said that
Defendant was cooperative. Sergeant Crowson looked in a window of Defendant’s car and noticed
a two-tone, small caliber semiautomatic pistol lying on the floorboard of the driver’s side of the car.

        Officer Danielle McKenzie, with the Horn Lake, Mississippi Police Department, was
dispatched to the scene. She read Defendant his Miranda rights. Officer McKenzie said that
Defendant told her he did not “understand what an attorney was.” Officer McKenzie explained the
role of an attorney and said that Defendant appeared to understand. Officer McKenzie said that the
officers discovered three car speakers and an amplifier in the trunk of Defendant’s vehicle.

        Sergeant Nathan Berryman with the Memphis Police Department said that one of the victim’s
friends told him she had spoken with the victim on the telephone around 10:30 p.m. on December
31, 2001. The victim told her friend that she had another call coming in and put the friend on hold.
When the victim returned to the line, she told the friend that she needed to speak to the man on the
other line about selling him her car speakers and amplifier. Defendant was identified as the caller
from the victim’s telephone caller identification box.

       Sergeant Berryman said that Defendant’s aunt called the police department on January 2,
2002, and informed them that Defendant had been incarcerated in Mississippi. Sergeant Berryman


                                                 -2-
and Sergeant Gossett traveled to Hernando, Mississippi, and began interviewing Defendant at
approximately 5:00 p.m. Defendant was read his Miranda rights and signed a waiver of those rights.
Sergeant Berryman said that Defendant was calm and appeared to understand his rights. After
offering different versions of how he had gained possession of the speakers found in the trunk of his
car, Defendant told Sergeant Berryman, “I messed up, didn’t I.” Defendant asked to speak to
Sergeant Berryman alone and implicated himself in the commission of the homicide of the victim.
Sergeant Berryman read Defendant his Miranda rights a second time around 6:30 p.m., and
Defendant gave a written statement which was read to the jury during the trial.

        In his statement, Defendant said that he met the victim a few days before Christmas, and she
told Defendant she had three car speakers and an amplifier for sale. Defendant said that while he
was trying to raise the cash to buy the equipment, he and the victim began seeing each other socially.
Defendant said he called the victim several times on December 31, 2001, but did not get an answer.
He went to the victim’s home “about eight something that night and parked in the driveway.” The
victim did not answer the door when he knocked and rang the doorbell. Defendant said he went to
the back of the house and took an air conditioner out of one of the windows. He heard the victim
call out, “Who’s there.” Defendant said he ran away but decided to go back. He jumped through
the open window in the back of the house. He said the victim walked away from him saying, “I’m
fixin[g] to blow yo[ur] ass off.” Defendant said he shot the victim five or six times with a .380
caliber handgun. Defendant retrieved the victim’s car speakers and amplifier from a room in the
victim’s house and put them in the trunk of his car. Defendant said that the victim was still breathing
when he left. Defendant said he drove to Mississippi after stopping at a store to buy beer, and asked
a friend to hook up the speakers and amplifier in his car.

         On cross-examination, Sergeant Berryman said that the shell casings found at the victim’s
home were .380 caliber. He said that different kinds of weapons were capable of firing .380 caliber
bullets.

       Dr. Teresa Allen Campbell stated that she was a forensic pathologist and performed an
autopsy on the victim on January 2, 2002. Dr. Campbell said that the victim died as a result of
multiple gunshot wounds. Dr. Campbell said that the absence of soot or gunpowder on the victim’s
clothing indicated that the shooter was standing more than two feet away from the victim when the
weapon was fired. One bullet penetrated the victim’s upper right back causing the right lung to
hemorrhage and collapse. Dr. Campbell said this wound was sufficient to cause death, although the
victim could have possibly recovered from this wound if she had received immediate medical
treatment. A second bullet entered the victim’s body in the middle of her back, traveled through her
body, and pierced her abdominal wall. Dr. Campbell said this wound was also sufficient to cause
death. Dr. Campbell said that there was not a lot of bleeding associated with the abdominal wound
because she believed that the victim had already expired from the chest wound. Two other bullets
caused superficial wounds to the victim’s back and upper leg.




                                                 -3-
II. Sufficiency of the Evidence

        Defendant does not contend that he did not kill the victim. Defendant argues, however, that
the evidence was insufficient to support a finding that the victim was shot during the perpetration
of a theft or burglary. In support of his argument, Defendant refers to several inconsistencies in his
statement. For example, Defendant said in his statement that he arrived at the victim’s house around
8:00 p.m. on December 31, 2002. The victim’s daughter, however, testified that she last spoke with
her mother around 12:45 a.m. on January 1, 2002. At one point in his statement to the police,
Defendant said that the victim was lying down on the bed in her daughter’s bedroom when
Defendant entered the house. At another point in the statement, Defendant recalled that the victim
“rosed [sic] up from the floor beside the bed.” Defendant argues that this inconsistence “makes no
logical sense.”

        Defendant argues that the fact that he went with his friend to get a refund on his car speakers
so he could buy the victim’s speakers, that he parked in the victim’s driveway that night, and that
he repeatedly rang the door bell indicates that he did not go to the victim’s house with the intent to
steal her speakers.

        However illogical Defendant’s statement appeared at times, his challenge to the sufficiency
of the evidence addresses matters left to the jury for resolution. In examining whether the evidence
is sufficient to support Defendant’s conviction of first degree felony murder, we must review the
evidence in a light most favorable to the prosecution in determining whether a rational trier of fact
could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Once a jury finds a
defendant guilty, his or her presumption of innocence is removed and replaced with a presumption
of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of
overcoming this presumption, and the State is entitled to the strongest legitimate view of the
evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts
and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this
court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

        First degree felony murder, as relevant here, is the “killing of another committed in the
perpetration of or attempt to perpetrate any . . . burglary.” Tenn. Code Ann. § 39-13-202(a)(2).
Aggravated burglary is the burglary of a habitation. Id. § 39-14-403(a). “A person commits burglary
who, without the effective consent of the property owner . . . enters a building and commits or
attempts to commit a felony, theft or assault.” Id. § 39-14-402(a)(3). “A person commits theft of
property if, with intent to deprive the owner of property, the person knowingly obtains or exercises
control over the property without the owner’s effective consent.” Id. § 39-14-103.


                                                   -4-
        Defendant said in his statement that he and the victim discussed his purchasing the victim’s
car speakers and amplifier during the days immediately before New Year’s Eve. The caller
identification box on the victim’s telephone showed that the victim spoke to someone from a
telephone number listed in Defendant’s name around 10:30 p.m. on December 31, 2002. The victim
told another caller that the telephone call was from the man who wanted to buy her car stereo
equipment. Ms. Harris said that she last spoke with her mother at approximately 12:45 a.m. on
January 1, 2002. Defendant said that he entered the victim’s home by removing the air conditioner
from a window in the back of the house. Defendant said that he walked behind the victim after she
had confronted him and repeatedly shot at her. He took the victim’s speakers and amplifier from the
house, placed the equipment in the trunk of his car, and drove to Mississippi. Ms. Harris identified
the car speakers and amplifier found in the trunk of Defendant’s car as the victim’s.

       Viewing the evidence in a light most favorable to the State, and leaving the resolution of any
inconsistencies to the jury, we conclude that a rational trier or fact could conclude beyond a
reasonable doubt that Defendant committed the offense of first degree felony murder during the
perpetration of a burglary and theft. Defendant is not entitled to relief on this issue.

III. Motions to Suppress

       Defendant argues that the trial court erred in denying his motions to suppress the evidence
obtained during a search of his car and in his statement to the police.

        At the suppression hearing, Sergeant Pierce testified that he received a bulletin at
approximately 5:15 p.m. on January 1, 2002, to be on the look out for a black Chevrolet or Ford with
shiny rims around the hubcaps. The dispatcher described the driver as a male African-American
with corn rows in his hair, and he was accompanied by a Hispanic male and a child. The dispatcher
said that the suspect was armed and was wanted in connection with an armed robbery at a Sonic
Restaurant in Horn Lake, Mississippi. Another officer spotted a car and driver matching this
description, and Sergeant Pierce responded to the officer’s request for back-up. Sergeant Pierce said
that Defendant pulled his Chevrolet Caprice into a parking lot and went inside a Blockbuster store.
Defendant was the only person in the car.

        Sergeant Pierce entered the store and asked Defendant to step outside. Defendant identified
himself and said that he was driving the Caprice. Sergeant Pierce patted down Defendant but did
not find a weapon. He said that Sergeant Crowson arrived and walked over to Defendant’s car.
Sergeant Crowson told Sergeant Pierce that there was a gun in the car. Sergeant Pierce arrested
Defendant and handcuffed him. He did not read Defendant his Miranda rights and did not question
him further.

        Sergeant Crowson said that he used a flashlight when he looked inside Defendant’s car. He
saw a small caliber, semiautomatic pistol in the floorboard, lying partially beneath the driver’s seat.
He also saw cups and paper bags with the Sonic label. Sergeant Crowson said that he and Sergeant
Pierce did not question Defendant because the armed robbery was not their case. Sergeant Crowson


                                                 -5-
identified the gun in Defendant’s car as a .380 caliber pistol. Sergeant Crowson said he did not
search the interior of Defendant’s car.

        Officer McKenzie brought the victims of the armed robbery to the parking lot where
Defendant was detained. The victims identified Defendant as their assailant. Officer McKenzie
arrested Defendant and read him his Miranda rights. Officer McKenzie said Defendant told her he
did not know what an attorney was. Officer McKenzie explained that an attorney would be the
person who would help him in his defense. Defendant said he understood, and Officer McKenzie
read Defendant his Miranda rights again. After Defendant was arrested, his accomplice, Robert
Snow, was detained as he came out of a nearby K-Mart.

        Officer McKenzie searched Defendant’s car and saw paper bags with the Sonic logo and a
black and silver gun that was partially beneath the driver’s seat. Officer McKenzie also opened the
car’s trunk because one of the victims said that just before she was robbed, Mr. Snow was leaning
into the trunk “messing with something in the trunk” while Defendant stood nearby. Officer
McKenzie saw a box of car speakers in the trunk.

        Defendant gave a written statement at approximately 7:53 p.m. admitting his involvement
in the armed robbery in Horn Lake, Mississippi.

        Officer McKenzie said that a detective from the Memphis Police Department called her the
next morning and asked whether the Horn Lake Police Department had Defendant in custody.
Officer McKenzie confirmed Defendant’s incarceration. In response to the officer’s questions, she
described the pistol and speakers that were found in Defendant’s car. After the Memphis detectives
arrived, Officer McKenzie prepared a search warrant for Defendant’s car. The warrant was signed
by a municipal city judge who happened to be at the police station.

        Detective Scott Evans with the Horn Lake Police Department testified that he sat in as an
observer during Defendant’s interview by the Memphis police officers. Officer Evans said he
remembered that Defendant was read his rights and that he signed a written waiver. Officer Evans
did not remember whether or not Defendant requested the presence of an attorney. He described
Defendant as calm, quiet and “laid back.” Detective Evans believed Defendant’s interview began
around 3:00 p.m. on January 2, 2002.

        Sergeant Berryman said that he spoke with Detective Evans and Officer McKenzie when he
arrived in Horn Lake, Mississippi, on January 2, 2002. Officer McKenzie confirmed that the pistol
found in Defendant’s car was a .380 caliber handgun.

        Sergeant Berryman also had a description of the speakers which were the only thing
identified as missing from the victim’s home. Sergeant Berryman interviewed Mr. Snow and his
girlfriend, December Powell, before he interviewed Defendant. Both said that Defendant arrived at
Mr. Snow’s house in the early morning hours of January 1, 2002, with some car speakers in his trunk
and asked Mr. Snow to install them. Their description of the speakers matched the description of


                                                -6-
the victim’s speakers. Mr. Snow said Defendant paid him $50.00 to install the speakers in his car.
Sergeant Berryman said he obtained a search warrant for Defendant’s car after he interviewed Mr.
Snow and Ms. Powell and found speakers matching the description of the victim’s speakers in the
trunk of the car.

        Sergeant Berryman and Sergeant Gossett began questioning Defendant about the victim’s
murder around 5:00 p.m. Sergeant Gossett read Defendant his Miranda rights, and Defendant signed
a written waiver. Sergeant Berryman said Defendant gave two or three versions as to how he
acquired the speakers. Sergeant Berryman said Defendant stopped talking and asked if he could
speak with Sergeant Berryman alone. Sergeant Gossett left the room. Defendant then described the
sequence of events leading up to the shooting of the victim. Sergeant Gossett rejoined the interview,
and Defendant was again read his Miranda rights. Sergeant Gossett began typing Defendant’s
statement at 6:30 p.m. Defendant read over the statement, made a few corrections, and signed the
statement at 9:40 p.m. Sergeant Berryman said that Defendant’s demeanor during the interview was
“calm, quiet spoken,” although he cried at one point.

      On cross-examination, Sergeant Berryman said that no one threatened Defendant. Sergeant
Berryman said that Defendant did not ask to speak to a lawyer or his mother during the interrogation.

       Sergeant Gossett confirmed that Defendant was read his Miranda rights before the interview
began at 5:00 p.m. and again before Sergeant Gossett began typing Defendant’s statement at 6:30
p.m. Sergeant Gossett said that Defendant asked to speak to Sergeant Berryman alone because
Defendant had built up a rapport with him. On cross-examination, Sergeant Gossett said that neither
he nor Sergeant Berryman made any promises to Defendant in exchange for him giving the
statement.

                                      A. Search of the Vehicle

        The trial court found that the Southhaven police officers had probable cause to detain
Defendant based on the information dispatched by the Horn Lake Police Department concerning the
armed robbery at the Sonic Drive-In. The trial court found that the gun was in plain view in
Defendant’s car. Following the victims’ identification of Defendant as the perpetrator of the armed
robbery, the trial court found that Officer McKenzie had probable cause to arrest Defendant and to
search his car prior to its impoundment. The trial court noted that Defendant did not challenge the
validity of the search warrant subsequently issued for Defendant’s car, and that the speakers in the
car’s trunk were properly discovered during the execution of the warrant.

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party
is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn from


                                                  -7-
that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this court is not bound
by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The
application of the law to the facts found by the trial court are questions of law that this court reviews
de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of
establishing that the evidence contained in the record preponderates against the findings of fact made
by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

        Defendant argues that the warrantless search of his vehicle by the Mississippi police officers
did not fall within any of the limited exceptions to the warrant requirement, and that the evidence
discovered by Officers Crowson and McKenzie should be suppressed.

        “Under both the United States and Tennessee Constitutions, a search or seizure conducted
without a warrant is presumed unreasonable.” State v. Smith, 21 S.W.3d 251, 254 (Tenn. Crim. App.
1999) (citations omitted). “Therefore, evidence seized as a result of a search or seizure conducted
without a warrant must be suppressed unless that search or seizure was conducted pursuant to one
of the recognized exceptions to the warrant requirement.” Id. (citing Coolidge v. New Hampshire,
403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)).

        One of these exceptions is the plain view exception which applies when a seized item is in
“plain view” from a lawful vantage point of the officer who conducts the search. See Harris v.
United States, 390 U.S. 234, 236, 88 S. Ct. 992, 993, 19 L. Ed. 2d 1067 (1968). The plain view
exception requires proof that the officer “did not violate the Fourth Amendment in arriving at the
place from which the evidence could be plainly viewed,” that the evidence was in plain view, and
that the incriminating nature of the evidence was immediately apparent. Horton v. California, 496
U.S. 128, 136, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112 (1990).

        Officer Crowson had information that the suspect matching Defendant’s physical description
and driving a similar car was armed. Officer Crowson testified that Defendant’s car was parked in
a public parking lot, and that Defendant’s gun, while partially beneath the driver’s seat of
Defendant’s car, was visible from Officer Crowson’s vantage point from the driver’s side window.
Officer McKenzie, also armed with information from the victims that a gun had been used to commit
the robbery, testified that Defendant’s gun was partially visible from the window. As recognized by
the Supreme Court in Payton v. New York, 445 U.S. 573, 586-87, 100 S. Ct. 1371, 1380-81, 63 L.
Ed. 2d 632 (1980), “objects such as weapons or contraband found in a public place may be seized
by the police without a warrant. The seizure of property in plain view involves no invasion of
privacy and is presumptively reasonable, assuming that there is probable cause to associate the
property with criminal activity.” Based on our review, the seizure of the gun in Defendant’s car by
the Mississippi police officers was proper under the plain view exception to the warrant requirement.
Moreover, because a gun was discovered in plain view in Defendant’s car, the police officers had
probable cause to search Defendant’s entire vehicle, including the trunk. United States v. Ross, 456
U.S. 798, 825, 102 S. Ct. 2157, 2173, 72 L. Ed. 2d 572 (1982). Defendant is not entitled to relief
on this issue.



                                                  -8-
                              B. Suppression of Defendant’s Statement

        Defendant argues that the trial court erred in not suppressing his statement to Sergeant
Berryman because the statement was the result of physical or psychological coercion. See Rogers
v. Richmond, 365 U.S. 534, 540-541, 81 S. Ct. 735, 740, 5 L. Ed. 2d 760 (1961). Defendant also
contends that the testimony presented at the suppression hearing left unresolved “legitimate
questions” as to whether Defendant understood his Miranda rights or whether he requested the
assistance of an attorney during the interrogation. The trial court found that both the Memphis and
Mississippi police departments properly advised Defendant of his Miranda rights on several
occasions, that Defendant said he understood those rights, and that he freely and voluntarily waived
those rights.

       “[I]n order for a confession to be admissible, it must be ‘free and voluntary; that is, 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, 18 S. Ct. 183, 187,
42 L. Ed. 2d 568 (1897)). The totality of the circumstances surrounding the giving of the statement
must be examined. See State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997). “A defendant’s subjective
perception alone is not sufficient to justify a conclusion of involuntariness in the constitutional sense.
Rather coercive police activity is a necessary predicate to finding that a confession is not voluntary.”
Smith, 933 S.W.2d at 455 (citations omitted).

        Defendant does not point to any examples of what he perceives to be coercive police activity
during his interrogation. Sergeant Berryman and Sergeant Gossett testified that no promises or
threats were made during the interview, and Defendant did not request the assistance of an attorney.
The officers said that Defendant was calm during the interview. Defendant was read his Miranda
rights before the oral interview and before Sergeant Gossett began typing his statement. Defendant
made corrections to the statement and signed it. Based on our review of the record, we conclude that
the evidence does not preponderate against the trial court’s finding that Defendant’s statement was
voluntarily given to police.

IV. Speedy Trial Issues

       Relying on Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972),
Defendant argues that the trial court erred in not dismissing the charges against him because his
Sixth Amendment right to a speedy trial was violated. Defendant was indicted by the Shelby County
Grand Jury on June 24, 2003, for the victim’s murder. Defendant was extradited to Tennessee from
Mississippi where he was in custody for charges arising out of the armed robbery in Horn Lake.
Defendant was arraigned on the Tennessee charges on September 24, 2003, and his trial commenced
April 26, 2004.

        Defendant contends that his right to a speedy trial was triggered when the Memphis police
officers interviewed him in Mississippi on January 2, 2002, although he was not charged with the


                                                   -9-
Tennessee offenses until his indictment in June 2003. Defendant argues that the delay of
approximately twenty-seven months between the giving of a statement to the Memphis police
officers, and his trial on the charges, was “presumptively prejudicial” and hindered his ability to
present a defense.

        The State argues that the date of the indictment, not his initial interview with the Memphis
police officers, triggered Defendant’s right to a speedy trial. Defendant was extradited and arraigned
in Shelby County on the current charges in September 2003, and Defendant asserted his right to a
speedy trial by a pro se motion filed in September 2003, and a motion to dismiss filed by his
appointed counsel in December 2003. Defendant’s trial commenced April 26, 2004. The State
argues, therefore, that the approximately ten months delay between the date of the indictment and
Defendant’s trial was not presumptively prejudicial.

        At the hearing on Defendant’s motion to dismiss, the prosecutor said that the district
attorney’s office received Defendant’s file in January 2002. Initially, no action was taken pending
receipt of test results from the T.B.I. The State acknowledged, however, that the bulk of the delay
was caused by oversight or inadvertence. The prosecutor stated that as soon as he discovered that
Defendant’s file had not been acted upon, he submitted the case to the grand jury on June 24, 2003.

       The trial court found that although part of the cause of the delay rested with the district
attorney’s office, there was no indication that Defendant had been prejudiced. Defendant was
incarcerated in Mississippi until he was arraigned on the current charges in Tennessee. The
testimony of Mr. Snow and Ms. Powell was preserved in statements, and the trial court found that
Defendant did not show that he was in any other way prejudiced by the delay.

        The Sixth Amendment to the United States Constitution, as well as the Tennessee
Constitution, guarantees those accused in a criminal prosecution the right to a speedy trial. U.S.
Const. amend. VI; Tenn. Const. Art. I, § 9; see also Tenn. Code Ann. § 40-14-101 (“In all criminal
prosecutions, the accused is entitled to a speedy trial . . . .”). “The speedy trial guarantee is designed
to protect the accused from oppressive pre-trial incarceration, the anxiety and concern due to
unresolved criminal charges, and the risk that the accused’s defense will be impaired by dimming
memories or lost evidence.” State v. Simmons, 54 S.W.3d 755, 758 (Tenn. 2001) (citing Doggett
v. United States, 505 U.S. 647, 654, 112 S. Ct. 2686, 2692, 120 L. Ed. 2d 520 (1992); State v. Utley,
956 S.W.2d 489, 492 (Tenn. 1997)).

        “Generally, post-accusation delay must approach one year to trigger a speedy trial inquiry.”
Simmons, 54 S.W.3d at 759 (citing Doggett, 505 U.S. at 652 n.1, 112 S. Ct. at 2691 n.1; Utley, 956
S.W.2d at 494). The length of delay that will trigger a speedy trial analysis depends upon the
peculiar circumstances of the case, and the “reasonableness of the delay depends upon the
complexity and nature of the case.” Barker, 407 U.S. at 530-531, 92 S. Ct. at 2192; Simmons, 54
S.W.3d at 759. If this threshold is crossed, Barker outlined a four-factor balancing test for courts
to apply in evaluating the merits of a speedy trial claim based on (1) the length of the delay; (2) the
reason of the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice


                                                  -10-
suffered by the defendant. Barker, 407 U.S. at 530, 92 S. Ct. at 2192; State v. Bishop, 493 S.W.2d
81, 83-85 (Tenn. 1973).

         When an accused seeks the dismissal of charges based upon the denial of a constitutional
right to a speedy trial, he or she must establish a period of delay that is “presumptively prejudicial.”
Simmons, 54 S.W.3d at 759. Our initial inquiry, then, is which State action in the instant case
triggered a speedy trial analysis for the purpose of determining whether or not the delay was
“presumptively prejudicial.” Both the provisions of the United States Constitution and the
Tennessee constitution “apply, by their own terms, to persons ‘accused’ in a ‘criminal prosecution.’”
State v. Wood, 924 S.W.2d 342, 345 (Tenn. 1996). “Clearly, to be an ‘accused’ one must be faced
with a ‘formal accusation’” such as a formal indictment, information or arrest. Id; see also United
State v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459-60, 30 L. Ed. 2d 468 (1971); State v. Baker,
614 S.W.2d 352, 353 (Tenn. 1981).

        In Utley, an arrest warrant was issued for the defendant in 1987, but he was not served with
the warrant until June 1992. Utley, 956 S.W.2d at 491. An indictment was returned in September
1992, and in December 1992, the defendant moved for the dismissal of the charges against him on
a speedy trial claim. Id. The defendant’s motion was granted in February 1993, and the State
appealed. Id. In Utley, the Court concluded that an arrest “warrant alone does not trigger speedy
trial analysis; to the contrary, a formal grand jury action or the actual restraints of an arrest are
required.” Id. The Court concluded that a delay of eight months in bringing Defendant to trial after
he was indicted in 1992 was not presumptively prejudicial under Barker without addressing the
remaining factors. Id.

        In the case sub judice, the triggering event for speedy trial purposes under Utley was
Defendant’s indictment for the current charges in June 2003, not his initial interview with the
Memphis police on January 2, 2002. After his indictment, Defendant was arraigned in September
2003, and his trial commenced April 26, 2004, approximately ten months after he was indicted. The
length of the delay in the instance case was not presumptively prejudicial under Barker v. Wingo.
Based upon our review of the record, we conclude that Defendant’s right to a speedy trial was not
violated.

        We note that Defendant focused his speedy trial argument at the motion hearing and in his
brief primarily on the delay which occurred between the commission of the crime and his indictment.
The trial court found that the delay between the commission of the crime and Defendant’s trial did
not violate Defendant’s Sixth Amendment rights under the guidelines of Barker v. Wingo. Although
a delay between the commission of a crime and the commencement of adversarial proceedings does
not violate an accused’s right to a speedy trial, it may raise due process concerns. State v. Carico,
968 S.W.2d 280, 284 (Tenn. 1998) (citing State v. Gray, 917 S.W.2d 668, 671 (Tenn. 1996)).

       Where the State has knowledge that a crime has been committed, and there is a delay in
bringing charges, the accused must show that “‘(a) there was a delay, (b) the accused sustained actual
prejudice as a direct and proximate result of the delay, and (c) the State caused the delay in order to


                                                 -11-
gain tactical advantage over or to harass the accused’” in order to get relief based on a pre-accusation
delay. Gray, 917 S.W.2d at 671 (quoting State v. Dykes, 803 S.W.2d 250, 255 (Tenn. Crim. App.
1990)).

         Clearly, the State was aware that a crime had been committed in the instant case. Defendant
gave a statement implicating himself in the commission of the crime on January 2, 2002. He was
not indicted, however, until June 2003, a delay of eighteen months. During that time, Defendant was
incarcerated in Mississippi on an unrelated armed robbery conviction. The State acknowledged that
its failure to bring the case to the Shelby County Grand Jury before June 2003 was a matter of
oversight, and Defendant has offered no evidence otherwise that the State caused the delay to gain
a tactical advantage. Defendant also did not contend that he was denied the benefit of witnesses who
became unavailable or that evidence was lost during the delay. Thus, absent any evidence that the
State’s pre-accusation delay was intentional, or that Defendant suffered actual prejudice as a result
of the delay, any failure on the part of the trial court to address Defendant’s pre-accusation delay in
terms of a due process claim rather than a speedy trial claim does not rise to the level of reversible
error.

V. Prior Bad Acts

       Defendant argues that the trial court erred in allowing Officer McKenzie and Sergeant
Berryman to mention during their testimony Defendant’s arrest in Mississippi on an unrelated
charge. Defendant contends that this testimony was unfairly prejudicial and placed before the jury
evidence of Defendant’s other crimes in violation of Rule 404(b) of the Tennessee Rules of
Evidence.

        Prior to the impanelment of the jury, and out of the presence of the jury, the State initiated
a discussion in open court concerning the problems associated with Defendant’s initial detention in
Mississippi which ultimately led to the discovery of the victim’s car speakers:

       [STATE]:                        There is one matter that’s going to come up, Your
                                       Honor. We need to address it. Because of an arrest in
                                       Mississippi . . . it is cogent and very relevant in the
                                       case relative to the issue of guilt, possession of stolen
                                       property. We’re going to have to put officers on from
                                       two agencies in Mississippi, both the Horn Lake
                                       Police Department and the Southhaven Police
                                       Department. I have talked to these officers this
                                       morning. As the Court knows, they talked or they
                                       testified in the motion to suppress. I have told them
                                       and told them and told them that I’m going to lead
                                       them, and they are to use words like . . . “detain,” not
                                       “arrest” because of the problem of the other case. . . .
                                       And I think we can skirt around that, but I think when


                                                 -12-
                                      it comes time to put that on, that it might be helpful if
                                      the Court reminded all three of them . . .

       [THE COURT]:                   All right.

        Defendant did not object to the relevancy of the testimony concerning his detention in
Mississippi on January 1, 2002. Defendant argues, however, that the State’s questioning during its
case-in-chief improperly elicited information from the witnesses beyond a mere reference to a
detention.

       On cross-examination, defense counsel asked Officer McKenzie if she took Defendant’s
statement when she transported him to the police station, and Officer McKenzie responded, “yes.”
On redirect examination, the prosecutor asked:

       [PROSECUTOR]:                  The statement that you took from him at that time did
                                      not relate to any crime in Memphis?

       [OFFICER MCKENZIE]:            No, sir.

       [PROSECUTOR]:                  All right. It was about another unrelated matter?

       [OFFICER MCKENZIE]:            Correct.

        During his direct examination, Sergeant Berryman explained that the reason the Memphis
Police Department could not initially find Defendant “was because he was incarcerated in
Mississippi, had got locked up that night.” Sergeant Berryman said that Defendant’s interview took
place in the “DeSoto County Sheriff’s Office which is the jail” because Defendant had been moved
from Horn Lake to Hernando, Mississippi.

       Defendant’s statement was read to the jury. It included the following:

       [SERGEANT BERRYMAN]:                      Were you arrested in Southhaven, Mississippi
                                                 on January the 1st, 2002 at approximately 6:00
                                                 p.m.?

       [DEFENDANT]:                              Yeah, at Blockbuster by Wal-Mart.

        At the close of his direct examination, Sergeant Berryman said that he did not take Defendant
into custody at that time but “left him in Hernando.”

       At this point, defense counsel requested a bench conference.




                                                   -13-
       [DEFENSE COUNSEL]:              Your Honor, I was looking for a breaking point, but it
                                       never really came. I want to object. Several times
                                       questions were asked that were not necessary, like the
                                       last one, the most recent one, “Did you leave him
                                       there in Hernando or did you bring him back with
                                       you?” I think that creates an improper inference in
                                       front of the jury. Another question was asked early in
                                       the conversation, and again, I didn’t want to stand up
                                       in the middle and bring it the jury’s attention, but – so
                                       he was being detained – he’d already been transferred
                                       from [DeSoto] County to Hernando or from Hernando
                                       to [DeSoto]. And those are again irrelevant and just
                                       questions —

       [THE COURT]:                    (Indiscernible.)

       [DEFENSE COUNSEL]:              Okay. But I just want to state that for the record.
                                       Again, I think had I jumped up and raised the
                                       objection at the time, that it would have, you know —

       [THE COURT]:                    Well, I think it’s obvious from the testimony that he
                                       was being detained by the Mississippi authorities.
                                       Now, I can give them a curative instruction, if that’s
                                       what you want me to do –

       [DEFENSE COUNSEL]:              It’s just that you don’t have to do it now. . . . I guess
                                       with the other instructions if you don’t mind. Again,
                                       my fear is that if you give it now, it’s calling too much
                                       attention to it so to speak.

       Defense counsel subsequently approved the trial court’s proposed instruction to the jury as
follows:

       Members of the jury, there has been mention of an incident involving [Defendant]
       in the State of Mississippi. Whether or not [Defendant] had any problems in the
       State of Mississippi [is] not for your consideration and that should not have any
       bearing on your verdict in this case.

        Initially, we address the State’s contention that Defendant argues for the first time on appeal
that the admission of certain portions of Officer McKenzie’s and Sergeant Berryman’s testimony
concerning his “detention” violated Rule 404(b)’s proscription against propensity evidence of other
crimes. See Tenn. R. Evid. 404(b) (“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity with the character trait.”)


                                                 -14-
        Although evidence concerning Defendant’s arrest for armed robbery in Mississippi
constitutes evidence of “other crimes” as contemplated by Rule 404(b), Defendant’s objection at
trial and in his motion for new trial was based on the prejudicial nature of the testimony, not Rule
404(b). Because Defendant did not request a hearing under Rule 404(b)(1), the trial court did not
“determine [whether] a material issue exist[ed] other than conduct conforming with a character trait”
that would have supported admission of the evidence, and, if so, whether the probative value of the
evidence was outweighed by the “danger of unfair prejudice.” See Tenn. R. Evid. 404(b)(2) and (3).
Our Supreme Court has recently observed that a reviewing court will not consider whether evidence
is inadmissible under Rule 404(b) where the defendant did not request a Rule 404(b) hearing at trial
or in the motions before the trial court. State v. Jones, 151 S.W.3d 494, 498 n.3 (Tenn. 2004). This
Court has also previously concluded that a “defendant may not base his objection to the admission
of evidence on relevance at trial and then base his argument on another ground, such as violation of
Rule 404(b), Tenn. R. Evid., on appeal.” State v. Korsakov, 34 S.W.3d 534, 545 (Tenn. Crim. App.
2000) (citing State v. Miller, 668 S.W.2d 281, 285 (Tenn. 1984)). Thus, Defendant has waived his
argument on this basis. See Tenn. R. App. P. 36(a).

        The State argues that defense counsel’s question during Officer McKenzie’s cross-
examination as to whether she had taken Defendant’s statement was a classic example of “opening
the door.” Relying on State v. Robinson, 146 S.W.3d 469 (Tenn. 2004), the State contends that the
prosecutor properly clarified Officer McKenzie’s testimony during redirect examination that the
statement was taken in connection with an unrelated matter. Defendant’s counsel explained in the
brief that he asked the question because he did not believe that Officer McKenzie had taken
Defendant’s statement, and that he subsequently did not object to the prosecutor’s follow-up
question because he did not want “to draw any further attention to the matter.” Generally, “‘[w]here
a defendant has injected an issue into the case, the State may be allowed to admit otherwise
inadmissable evidence in order to explain or counteract a negative inference raised by the issue
defendant injects.’” State v. Land, 34 S.W.3d 516, 531 (Tenn. Crim. App. 2000) (citations omitted).
The doctrine’s application, however, is “limited by ‘the necessity of removing prejudice in the
interest of fairness.’” Id. (quoting Crawford v. United States, 198 F. 2d 976, 979 (D.C. Cir. 1952)).

        The State relied in large part on Defendant’s statement to Sergeant Berryman to support
Defendant’s convictions. Officer McKenzie’s testimony left the jury with the impression, without
further clarification, that Defendant actually made two statements, and it was unclear whether this
second statement, which was not introduced into evidence, was made in connection with the murder
in Tennessee. Based on our review, we conclude that the State’s clarification of Officer McKenzie’s
testimony during cross-examination was proper. Moreover, a defendant “‘will not be permitted to
take advantage of errors which he himself committed, or invited, or induced the trial court to
commit, or which were the natural consequence of his own neglect or misconduct.’” Robinson, 146
S.W.3d at 493 (citations omitted). Defendant is not entitled to relief on this issue.

        As noted above, Defendant did not object on relevancy grounds to the State’s witnesses
referring to Defendant’s “detention” in Mississippi. See State v. Thompson, 36 S.W.3d 102, 108
(Tenn. Crim. App. 2000)(Failure to make a contemporaneous objection to testimony waives


                                                -15-
appellate consideration of the issue). Defendant argues, however, that Sergeant Berryman’s more
specific references to his arrest were unfairly prejudicial. The State argues that any unfair prejudice
arising out of these references was dispelled by the trial court’s curative instruction, which was
requested and approved by defense counsel.

        At the conclusion of Sergeant Berryman’s direct examination, Defendant requested a hearing
out of the presence of the jury and voiced his objections to Sergeant Berryman’s references to
Defendant’s arrest in Mississippi. At Defendant’s request, the trial court agreed to give a curative
instruction. Defendant then asked the trial court to wait and provide the instruction “just in the [trial
court’s] instructions . . . before we give closing arguments.” Defendant subsequently agreed that the
trial court’s proposed instruction on the issue was “curative.”

        It has long been the rule in Tennessee that “limiting instructions can cure an error in the trial
of a case, even one involving reference by a witness to a prior crime in which the defendant was
involved, unless real doubt is raised as to whether the cautionary instruction was effective.” State
v. Scruggs, 589 S.W.2d 899, 900 (Tenn. 1979). The jury is presumed to follow the trial court’s
instruction. State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994). Based upon our review of the
record, the trial court’s curative instruction was sufficient to correct any possible prejudice that
resulted from Sergeant Berryman’s references. Defendant is not entitled to relief on this issue.

VI. Lesser Included Offenses

        Defendant argues that the trial court erred in failing to instruct the jury on voluntary
manslaughter as a lesser included offense of felony murder. Prior to the submission of the trial
court’s instructions to the jury, Defendant orally requested on the record that the trial court provide
an instruction on the lesser included offense of voluntary manslaughter. Defendant contended that
the evidence was sufficient to support such an instruction based on Defendant’s statement that he
and the victim had been seeing each other socially, that there were signs of a struggle in the victim’s
daughter’s bedroom, and that Defendant said that the victim said she was going to shoot him right
before he discharged his weapon. The trial court responded:

        Well, I understand your argument [counsel], but under the law as I understand it to
        be, voluntar[y] manslaughter is not an included offense for murder during the
        perpetration of a felony because of the elements of the offense of voluntary
        manslaughter, and frankly, I don’t find that there is any basis to charge that based on
        the proof that we have in the record.

        The State argues initially that Defendant has waived this issue for failure to comply with the
requirements of Tennessee Code Annotated section 40-18-110. Pursuant to these statutory
provisions, the trial court’s failure to instruct the jury on a particular lesser included offense may not
be raised on appeal or in a motion for new trial unless the defendant requests in writing that the trial
court provide such an instruction prior to the trial court’s charge to the jury. Tenn. Code Ann. § 40-
18-110(c). However, a panel of this Court has recently concluded that “an oral request for an


                                                  -16-
instruction of a lesser included offense which is made on the record in a felony case where by law
a court reporter must be present to prepare a verbatim record of the proceedings, satisfies the ‘in
writing’ requirement of Tennessee Code Annotated section 40-18-110 so long as the oral request is
made prior to the trial court’s charge to the jury . . . .” State v. Ronald Eugene Hall and Henry Lee
Dixon, No. M2003-02326-CCA-R3-CD, 2005 WL 292432, at *6 (Tenn. Crim. App., at Nashville,
Feb. 8, 2005), no perm. to appeal filed. Thus, we will address Defendant’s issue on the merits.

         The trial court instructed the jury on second degree murder, reckless homicide and criminally
negligent homicide as lesser included offenses of felony murder in both counts of the indictment.
It is well established that these three offenses are lesser included offenses of felony murder. See
State v. Ely, 48 S.W.3d 710, 721-22 (Tenn. 2001). Although Ely did not specifically address whether
voluntary manslaughter is a lesser included offense of felony murder, this Court has previously held
that it is. State v. Marlon Marktavias Fitzgerald, No. W2001-03096-CCA-R3-CD, 2003 WL
261940, at *9 (Tenn. Crim. App., at Jackson, Feb. 7, 2003), perm. to appeal denied (Tenn. July 7,
2003); State v. Alfonzo Williams, W2001-00452-CCA-R3-CD, 2002 WL 1482695, at *5 (Tenn.
Crim. App., at Jackson, Mar. 15, 2002), perm. to appeal denied (Tenn. Sept. 23, 2002) (citing State
v. Daniel Wade Wilson, No. E2000-01885-CCA-R3-CD, 2001 WL 872442, at *14 (Tenn. Crim.
App., at Knoxville, Aug. 2, 2001), perm. to appeal denied (Tenn. Mar. 11, 2002)).

        If an offense is found to be a lesser included offense, we must next determine whether the
evidence justified an instruction on the lesser included offense. State v. Bowles, 52 S.W.3d 69, 75
(Tenn. 2000). “In making this determination, the trial judge shall view the evidence liberally in the
light most favorable to the existence of the lesser included offense without making any judgment on
the credibility of such evidence.” Tenn. Code Ann. § 40-18-110(a). “Whether an instruction is
required depends upon the evidence, not the theory of the defense or the State.” Robinson, 146
S.W.3d at 486 (citing State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002)); State v. Richmond, 90
S.W.3d 181, 188 (Tenn. 2002).

        Voluntary manslaughter is the “intentional or knowing killing of another in a state of passion
produced by adequate provocation sufficient to lead a reasonable person to act in an irrational
manner.” Tenn. Code Ann. § 39-13-211(a). Defendant relies primarily on his statement to support
his contention that there was sufficient evidence in the record to support a finding that he shot the
victim in a state of passion produced by adequate provocation.

        In his statement, Defendant said he met the victim about five days before Christmas in front
of Advance Auto Parts, and their conversation led to the victim’s offer to sell him her car speakers.
The two continued to speak over the next few days by telephone, and Defendant eventually visited
the victim in her home. Defendant said that on the night of the shooting, he called the victim, but
no one answered. Defendant continued in his statement to the police:

       Then after that, after an hour went by I called again, nobody answered after several
       calls, and I went over to [the victim’s] by myself about [eight o’clock] something that
       night and parked in the driveway under the shed and knocked on the door and rung


                                                -17-
       the doorbell repeatedly. No one came to the door. And I started to leave, and I
       turn[ed] around and then went and beat on the door and rung the doorbell. And I
       went to the front windows and knocked on it and went to the back window and then
       raised the window up and took the air conditioner out, and [the victim] said, “Who’s
       that?” and I ran away and jumped the gate and then came back and jumped the gate
       again into [the victim’s] yard and kept running full speed and jumped straight
       through the window. The victim was on the bed at first in the room I jumped into,
       then she rosed [sic] up from the floor from beside the bed and walked away to the
       den. I walked behind her and she said, “I’m fixin [sic] to blow [your] ass off” and
       I shot her repeatedly and walked back to the room and got the speakers.

         Defendant said that the victim told him she was going to shoot him, and he fired his gun five
or six times at the victim as she walked away from him into the den. Based on the foregoing, and
viewing the evidence liberally in the light most favorable to the existence of the lesser included
offense, we conclude that the evidence was sufficient to warrant an instruction on voluntary
manslaughter.

        We conclude, however, that the trial court’s failure to instruct the jury on voluntary
manslaughter was harmless error. Our supreme court has found harmless error where the jury was
instructed on at least one lesser included offense, and the jury convicted on the indicted greater
offense. State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998) (holding failure to instruct on
voluntary manslaughter as a lesser included offense of first degree murder was harmless error where
jury convicted on first degree murder and declined to convict on second degree murder). The trial
court instructed the jury on second degree murder, reckless homicide and criminally negligent
homicide in the case sub judice. The jury chose to convict Defendant of the greater offense of first
degree felony murder. Based upon our review of the record, we conclude that the failure to instruct
the jury on voluntary manslaughter did not affect the outcome of the trial, and the error, if any, was
harmless beyond a reasonable doubt. State v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002).

VII. Prosecutorial Misconduct

        Defendant argues that the prosecutor improperly made inflammatory statements and injected
his personal opinion into his closing arguments in the guilt phase of the trial and the sentencing
phase. The State argues that Defendant did not object to the prosecutor’s argument, and the issue
of prosecutorial misconduct is thus waived for purposes of appeal. Although defense counsel did
not object to the prosecutor’s statement at the time the statements were made, the issue of
prosecutorial misconduct was raised in Defendant’s motion for new trial. See Tenn. R. App. P. 3(e).

       Rule 3(e) of the Tennessee Rules of Appellate Procedure provides, in pertinent part:

       Provided, however, that in all cases tried by a jury, no issue presented for
       review shall be predicated upon error in the . . . misconduct of jurors, parties, or



                                                -18-
        counsel . . . unless the same was specifically stated in a motion for a new trial;
        otherwise such issues will be treated as waived.

         Rule 36(a) of the Tennessee Rules of Appellate Procedure also provides that relief may not
be granted to a party who fails to take whatever action is reasonably available to prevent or nullify
the harmful effect of the error. Thus, “relief may not be granted in contravention of the province of
the trier of fact,” and failure to present an issue to the trial court, therefore, will typically not merit
appellate relief. See Tenn. R. App. P. 3 and 36 Advisory Commission Comments. Specifically,
failure to object to a prosecutor’s alleged improper comments typically results in a waiver on appeal
of any complaint concerning the prosecutor's comments. Tenn. R. App. P. 36(a); State v. Thornton,
10 S.W.3d 229, 234 (Tenn. Crim. App. 1999); State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim.
App. 1997); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992).

        Nonetheless, issues that rise to the level of plain error lie within the sound discretion of the
appellate court and may be considered: (1) to prevent needless litigation; (2) to prevent injury to the
interests of the public; and (3) to prevent prejudice to the judicial process, prevent manifest injustice,
or to do substantial justice. See Tenn. R. App. P. 13(b); Tenn. R. Crim. P. 52(b); State v. Adkisson,
899 S.W.2d 626, 638-39 (Tenn. Crim. App. 1994).

        Thus, if this court is to review the Appellant's claim of prosecutorial misconduct, we must
do so utilizing plain error review pursuant to Tenn. R. Crim. P. 52(b) which provides: "[a]n error
which has affected the substantial rights of an accused may be noticed at any time, even though not
raised in the motion for new trial or assigned as error on appeal, in the discretion of the appellate
court where necessary to do substantial justice." However, in this case, we conclude that although
certain remarks by the prosecutor during closing argument were improper, the nature and context of
the comments do not rise to the level of plain error.

          Closing argument is a valuable privilege for both the State and the defendant, and our courts
have generally extended counsel wide latitude in arguing before the jury. State v. Cauthern, 967
S.W.2d 726, 737 (Tenn. 1994). Consequently, trial judges are also accorded wide discretion in their
control of closing argument, and this discretion will not be disturbed on appeal in the absence of
abuse. Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975); State v. Zirkle, 910 S.W.2d 874, 888
(Tenn. Crim. App. 1995). Closing argument, however, “must be temperate, based upon the evidence
at trial, relevant to the issues being tried, and not otherwise improper under the facts or the law.”
State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003) (citing Coker v. State, 911 S.W.2d 357, 368
(Tenn. Crim. App. 1995)). Specifically, “[i]t is unprofessional conduct for the prosecutor to express
his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the
defendant.” Goltz, 111 S.W.3d at 6 (citations omitted). Nor should the prosecutor “use arguments
calculated to inflame the passions or prejudices of the jury.” Id. (citations omitted).

        If a prosecutor’s argument is found to be improper,




                                                   -19-
        the established test for determining whether there is reversible error is whether the
        conduct was so improper or the argument so inflammatory that it affected the verdict
        to the [defendant’s] detriment. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758,
        759 (1965). In measuring the prejudicial impact of any misconduct, this court should
        consider: (1) the facts and circumstances of the case; (2) any curative measures
        undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the
        cumulative effect of the improper conduct and any other errors in the record; and (5)
        the relative strength or weakness of the case. Judge v. State, 539 S.W.2d 340, 344
        (Tenn. Crim. App. 1976); see also State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984).

Id. at 5-6.

                                   A. Closing Argument at Trial

      Defendant argues that the prosecutor interjected his personal opinion into his closing
argument when he told the jury,

        [p]rosecutors are people, too. I’m loud. I rant and I rave, and I’m frustrated, thirty
        years of dealing with this, and I’m not the most sophisticated human being in the
        world, and yeah, I am mad, but I’m a human being, too. I don’t want innocent people
        in the penitentiary. That’s just not right. . . . What we ask you to do is to watch over
        us, watch over the prosecution, do just what [defense counsel] said to do. That’s
        what he’s here for. It’s what you’re here for, is to watch over us.

        Although a prosecutor must not express a personal belief or opinion, whether the prosecutor’s
comments qualify as such often depends upon the specific terminology used. For example, argument
predicated by the words “I think” or “I submit” does not necessarily indicate an expression of
personal opinion. United States v. Stulga, 584 F.2d 142 (6th Cir. 1978). Thus, it is not necessarily
improper each time the prosecutor uses the word “I” or “we.” See State v. Thomas Dee Huskey, No.
E1999-00438-CCA-R3-CD, 2002 WL 1400059, at *129 (Tenn. Crim. App., at Knoxville, June 28,
2002), perm. to appeal denied (Tenn. Feb. 18, 2003). In this instance, the prosecutor did not express
a personal opinion as to “the truth or falsity of any testimony or evidence or the guilt of the
defendant.” Goltz, 111 S.W.3d at 6. The prosecutor, albeit phrasing his argument in the first person,
referred to something said by defense counsel. As previously noted, there was no contemporaneous
objection to the prosecutor’s statement. What was impliedly stated by defense counsel is not
included in the record. It is Defendant’s responsibility to insure that the appellate record contains
all relevant portions of the trial court proceedings. The prosecutor’s comments, taken in context,
were not improper.

      The prosecutor’s description of Defendant as a “back-shooting woman killer,” however, was
improper. It is improper for the prosecutor to use epithets to characterize the defendant. Cauthern,
967 S.W.2d at 737. Looking at the statement in context, the prosecutor commented,



                                                 -20-
       [t]he first element, “That the defendant unlawfully killed the alleged victim.” Any
       question about that? Any question about it being unlawful, a back-shooting woman
       killer? That’s who you’re looking at, folks. That’s not rhetoric from [the
       prosecutor]. That comes from the medical examiner. Where [did] gunshot wound
       A go? Where did it enter her body? In her back. Where did gunshot B and C go?
       In her back. You got the wound chart.

The prosecutor then continued with his argument noting that “you saw where these bullets went in
her, and I’m sorry but when you – I ain’t sorry either. This is a back-shooting woman killer.”

        The prosecutor, of course, may comment on the evidence presented at trial and the reasonable
inferences which may be drawn therefrom. However, phrasing evidentiary comments in the form
of an epithet “so as potentially to appeal to [the] jury’s bias and passion is improper.” Id.
Nonetheless, based on the facts and circumstances of the case and the relative strength of the State’s
case-in-chief, we conclude that the prosecutor’s statements do not affirmatively appear to have
affected the verdict. See Tenn. R. Crim. P. 52(a).

        The next set of challenged comments occurred during the State’s rebuttal closing argument.
Defense counsel argued during closing argument that the State failed to present any expert testimony
to explain the trajectory of the bullets found in the victim’s home, pointing out that “if he came
through the window and shot [the victim] in the hallway, how was a case shelling behind a speaker
across the room near the front of the house, two of them, and a bullet fragment.” In rebuttal, the
prosecutor stated,

       [t]here was one bullet shell casing found in the . . . hallway. That’s what the
       defendant said. He said he fired the first shot in the hallway. Then he went into the
       den. Now, I guess he’s got us. We can’t tell you about how far a .380 hull is going
       to fly, what angle it’s going to fly when it’s fired from its gun . . . whether
       [Defendant] was holding it like this . . . whether he had [the gun] in his left hand or
       his right hand, so I guess you[‘ve] got to turn him loose because we didn’t bring
       somebody in here to show you to an exact science where his hand was when he fired
       those shots and those hulls were ejected. And I’m going to tell you one reason we
       didn’t do it is because that person doesn’t exist. That’s [sic] not a science to tell you
       how and how far these shells are going to go. Nobody knows that. Because they’re
       ejected, who knows, one’s going to go twenty feet, one’s going to go eighteen, one’s
       going to go three. . . . He moves his hand, and it goes up it hits a wall, a ceiling.

        Later, in response to the portion of Defendant’s statement in which he said, “and I pray to the
Lord that I will get a chance to be with my son before he get[s] older,” the prosecutor stated in
rebuttal, “I got news for you, [Defendant], a lot of fathers spend New Year’s Eve with their sons.”
The prosecutor also pointed out that Defendant did not say in his statement that he wished the victim
was not dead. Instead he said, “I wish at this moment I had never thought about shooting her. . . .”
The prosecutor responded in rebuttal argument, “Thank you for sharing that with us, [Defendant].


                                                 -21-
Come on, come on, she’s dead, [Defendant]. It’s your time to share the responsibility and assume
all of the responsibility, not just part of it, and not just weak excuses.”

        During closing argument, defense counsel focused on the internal inconsistencies in
Defendant’s statement when compared to the State’s evidence, as well as the inconsistency between
Defendant’s demeanor, which the police described variously as calm, quiet and cooperative, with
the personality of someone who would do “this ghastly thing.” The prosecutor’s comments as to
how far the spent bullet shells traveled when ejected from Defendant’s gun or how Defendant was
standing when he shot his weapon, although offered as speculation, border closely on impermissible
comments on evidence not in the record. Additionally, the prosecutor’s comments which were
addressed to Defendant personally instead of the jury served only to inflame the jury. Based on our
review of counsels’ closing arguments, however, the prosecutor’s comments in rebuttal were for the
most part in response to defense counsel’s points of contention during his closing argument and were
not so inflammatory as to render the proceedings fundamentally unfair or unduly prejudicial. The
comments thus do not rise to the level of plain error, and Defendant is not entitled to relief on this
issue.

                          B. Closing Argument during Sentencing Phase

        At the sentencing phase, the State introduced a certified copy of Defendant’s conviction in
Mississippi as a statutory aggravating circumstance. See Tenn. Code Ann. § 39-13-204(i)(2). The
State also called the victim’s daughter, Celeisia Harris, to testify concerning the impact the victim’s
death had on their family. For the defense, Defendant’s mother, Valencia Palmer, testified as to
Defendant’s good qualities during childhood, and Defendant apologized to the victim’s family. As
statutory mitigating circumstances, defense counsel argued Defendant’s lack of criminal history prior
to the murder and armed robbery offenses, and the Defendant’s youth at the time of the offenses.
See id. §§ 39-13-204 (j)(1) and (7).

        The prosecutor based the focus of his closing argument on the loss experienced by the
victim’s daughters as a result of their mother’s death, stating, at one point, “[t]he perspective I see
it from it is three daughters who’ve lost their mother. That gets to me. I don’t like that.” Later, the
prosecutor argued:

       why should [Defendant] get parole when these young ladies back here – they’re all
       young . . . [t]hey’re going to have to suffer for the rest of their lives, not just the fact
       their mother died. That’s bad enough, but the college educated young lady [Celeisia
       Harris] who was much less emotional than me about this, what did she say, that death
       is to be expected. It’s to be dealt with. It’s part of what we do, but when it comes
       like this, when it’s murder, it’s harder to deal with.

        We start by noting that “[i]n the sentencing proceeding, evidence may be presented as to any
matter that the court deems relevant to the punishment and may include, but not be limited to, the
nature and circumstances of the crime; the defendant’s character, background history and physical


                                                  -22-
condition; any evidence tending to establish or rebut the aggravating circumstances in subsection (j);
and any evidence tending to establish or rebut any mitigating factors.” Tenn. Code Ann. § 39-13-
204(c). The breadth of the statute’s language embraces the introduction of victim impact evidence
and prosecutorial argument on the evidence, so long as the evidence in not so “‘unduly prejudicial
that it renders the trial fundamentally unfair.’” State v. Nesbit, 978 S.W.2d 872, 889-91 (Tenn. 1998)
(quoting Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 2608, 115 L. Ed. 2d 720 (1991)).
“Generally, victim impact evidence should be limited to information designed to show those unique
characteristics which provide a brief glimpse into the life of the individual who has been killed, the
contemporaneous and prospective circumstances surrounding the individual’s death, and how those
circumstances financially, emotionally, psychologically or physically impacted upon members of the
victim’s immediate family.” Nesbit, 978 S.W.2d at 891 (citations omitted). “Similarly, while victim
impact argument by the prosecution about the evidence is permissible, restraint should be exercised.”
Id. “Argument on relevant, though emotional considerations is permissible, but inflammatory
rhetoric that diverts the jury’s attention from its proper role or invites an irrational, purely emotional
response to the evidence is not permissible . . . .” Id.

        Although at times emotional, we cannot conclude that the prosecutor’s comments that he felt
sorry for the victim’s daughters were improper “inflammatory rhetoric” when viewed within the
context of his closing argument. See State v. Thacker, 164 S.W3d 208, 253 (Tenn. 2005) (Stating
that a prosecutor’s statements during closing argument that he was sad and that he felt sorry for the
victim’s wife, although emotional, was not improper “inflammatory rhetoric.”). Defendant is not
entitled to relief on this issue.

                                           CONCLUSION

        After a thorough review of the record, we affirm the judgment of the trial court.


                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




                                                  -23-
