        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 19, 2010

           STATE OF TENNESSEE V. EZRA TAYLOR SHELTON

            Direct Appeal from the Criminal Court for Davidson County
                  No. 2008-A-826     J. Randall Wyatt, Jr., Judge




                No. M2009-01974-CCA-R3-CD - Filed August 26, 2011


Defendant, Ezra Taylor Shelton, was charged with first degree premeditated murder and
felony murder. Following a jury trial, he was convicted of second degree murder and
voluntary manslaughter. The trial court merged the offenses and imposed a sentence of
fifteen years in the Department of Correction for the resulting conviction of second degree
murder. On appeal, Defendant argues that (1) the evidence was insufficient to support his
conviction for second degree murder; and (2) the trial court failed to “properly address an
improper statement made by the prosecution during closing arguments.” 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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS,
J R., J., joined. D AVID H. W ELLES, S P.J., not participating.

Dumaka Shabazz, Nashville, Tennessee, for the appellant, Ezra Taylor Shelton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General, Victor S. (Torry) Johnson, III, District Attorney General; Amy Eisenbeck,
Assistant District Attorney General; and Elizabeth Foy, Assistant District Attorney General,
for the appellee, the State of Tennessee.

                                        OPINION

I. Background

       On the night of January 5, 2008, through the early morning hours of January 6, 2008,
Carlton Glenn, Patrick Carter, Mario Mayes (the victim), Marquez Jones, Tiara Chatman,
Philesha Jones, Laurekka Chatman, Antwanikka Chatman, and other young individuals
attended a going-away party for Jasmine Davis at 3117 Wilmoth Road in Davidson County.
Mr. Glenn testified that at some point, James Evans arrived at the party and began dancing
with Antwanikka Chatman, who was Mr. Glenn’s girlfriend at the time. Someone then
informed Mr. Evans that Antwanikka was Mr. Glenn’s girlfriend, and he stopped dancing
with her. Mr. Glenn and the victim were later over in the corner of the room talking, and Mr.
Evans became upset over a song by “Little Boosie” that was played. He began yelling
something about “gangsters.” According to Mr. Glenn, Mr. Evans became “real hyped” and
got into an altercation with Patrick Carter. Mr. Evans and Mr. Carter began flashing gang
signs, and Mr. Evans left. As he was leaving, Mr. Evans said, “I don’t care about dying and
when [I] come back, something gonna [sic] go down.”

        Mr. Glenn testified that Mr. Evans returned to the party with “[Defendant] and like
two or three other dudes.” Defendant had what appeared to be a nine millimeter weapon
tucked in the waistband of his pants. The group stayed at the party approximately ten
minutes and then left. Mr. Glenn, the victim, and Mr. Carter were standing outside as
Defendant, Mr. Evans, and Mr. Stephens were leaving. After they got into the car, Mr.
Carter fired six shots at them with Mr. Glenn’s .38 revolver but he did not hit anything. Mr.
Glenn testified that Mr. Evans drove up the street to the light, got out of the car, and shot into
the air. He then got back into the car and drove away. Mr. Glenn testified that everyone ran
when Mr. Evans began shooting, and Mr. Glenn “ducked behind the van next door.” The
victim went into the house and called Mr. Glenn on his cell phone to see if he was alright.

        Mr. Glenn testified that he and the victim then met back in the driveway, and Mr.
Glenn saw Mr. Evans’ car driving “fast” back down the street, and he heard gunshots. Mr.
Glenn grabbed the victim’s arm, and they began running down the driveway. He said, “[l]ike
I looked - - I glanced back and I seen a gun out the window shooting and, then, I told him to
duck. And, I pushed him and he said, ‘oh,’ and he fell.” Mr. Glenn heard at least ten shots
fired from the car, and they appeared to be shot from the back right passenger side. Mr.
Glenn picked the victim up and saw that he had been shot in the head. Mr. Glenn spoke with
Detective Danny Satterfield on January 18, 2008, but did not tell the whole story because he
did not want to get his friends into trouble. He spoke with Detective Satterfield a second
time on March 5, 2008, and told him everything. Mr. Glenn also identified Defendant from
a photographic lineup.

       Tiara Chatman testified that she was thirteen years old at the time of the shooting and
attended the party with her sisters, Antwanikka and Laurekka. At some point, James Evans
arrived at the party and began dancing with Antwanikka. Tiara testified that her sister
pushed Mr. Evans off of her, and after that she saw Mr. Glenn and the victim in the corner
talking. She then heard Mr. Evans say something about them plotting against him. Tiara

                                               -2-
testified that Mr. Evans left the party and later returned with Defendant, Tylere Stephens, and
another man. She said that Defendant had his shirt pulled up, and she saw a gun “on his
waist.” Tiara testified that sometime later she was in the house and heard gunshots. She
walked outside and saw everyone running. She then heard a second set of shots. Tiara
testified that she eventually spoke with police and identified Defendant from a photographic
lineup.

        Phileshia Jones testified that she saw Mr. Evans dancing at the party. He then left and
came back with Defendant and Mr. Stephens. She heard one of the men say, “[W]as anybody
(indiscernible) [sic] on me while we was gone[?]” Ms. Jones testified that the three men were
in the house for no more than five minutes, and then they left. She later heard gunshots while
she was inside the house. Ms. Jones testified that Tiara Chatman and the victim went outside
after the shots were fired, and she heard a second round of shots a few minutes later. Ms.
Jones later spoke with detectives and identified Mr. Evans from a photographic lineup. She
was also shown a second lineup but was unable to identify anyone.

       Zechiel Gilbert testified that he lives at 3127 Wilmoth Road, and there are six or seven
houses located between his residence and the scene of the shooting. He said that during the
early morning hours of January 6, 2008, he was awakened by gunshots. Mr. Gilbert looked
out the window and saw a car sitting there with a man at the back of the car shooting toward
3117 Wilmoth Road. He said,

       After about two or three minutes he got back in the car - - uh - - and they drove
       over to Wilmoth Circle, which is a little culdesac [sic] where they parked,
       talked to a SUV for about five minutes.

       The SUV then left onto Spears Road and the car turned about around, went
       back towards [3117].

Mr. Gilbert testified that after the car drove back down the road, he heard more gunshots.

        Sixteen-year-old Antwanikka Chatman testified that while she was at the party, a man
in a red shirt began “dancing on [her].” She said the victim then told Mr. Glenn, her
boyfriend, “Man, you ain’t gonna take that are you?” Mr. Glenn and the victim then walked
over to a corner and began talking, and the man in the red shirt walked outside. Antwanikka
testified that before the man in the red shirt left, “[h]e said when he come [sic] back
something gonna [sic] go down.” She said that the man came back approximately twenty
minutes later with Mr. Stephens, Defendant, and other “dudes.” Antwanikka testified that
the man in the red shirt asked if anyone had been “plotting” on him. The men stayed at the
party two or three minutes and left. Mr. Carter, the victim, Mr. Glenn, and Marques Jones

                                              -3-
then went outside after them. Antiwanikka later heard gunshots, and after one or two
minutes, she heard a second round of shots. She then looked out the door and saw the victim
fall with his cell phone in his hand. Antwanikka testified that there were multiple routes to
leave the neighborhood.

       Marques Jones testified that he walked to the party with the victim and Mr. Glenn.
They arrived about 8:30 p.m., and everyone was having a good time. At some point, Mr.
Evans arrived and after he was at the party for a while, he became offended by a song that
was played. Mr. Jones testified that Mr. Evans got mad and began yelling some about
“gangsters” and things of that nature. He explained that a word in the song was disrespectful
to a particular gang. Although Mr. Jones did not see Mr. Evans dancing with Antwanikka
Chatman, he heard Mr. Glenn tell Mr. Evans, “That’s my gal.” To which Mr. Evans replied,
“My bad.” Mr. Jones saw the victim and Mr. Glenn in the corner talking during the party.

        Mr. Jones testified that Mr. Evans left the party at some point and returned ten to
fifteen minutes later with seven or eight other people, including Defendant. He said that Mr.
Carter then walked up to him and asked him to go outside. Mr. Jones took that to mean that
Mr. Carter thought something was going to happen. He said that Mr. Glenn had a gun at the
time which Mr. Carter took and shot toward Mr. Evans after he got into a car. Mr. Jones
testified that he, Mr. Carter, and Mr. Carter’s brother then ran to Mr. Carter’s apartment in
Knoll Crest and remained there. Mr. Jones called the victim who said that he was in the
house at 3117 Wilmoth. He later identified Defendant from a photographic lineup.

      Fifteen-year-old Laurekka Chatman testified that while she was at the party, Mr.
Evans began dancing with her sister, Antwanikka. She said,

       uh - - he was dancing on her and, then, Velle [Mr. Glenn], he was looking like
       . . . cause that’s his girlfriend. So, the dude got up and he’s like, “My bad. Is
       this your girlfriend?” And, then, he was like, “Yeah.” And, he said something
       “I’m just trying to be me (phonetic)”, something like that.

Laurekka testified that Mr. Evans then said that something was going to “go down” when he
came back. Laurekka testified that Mr. Evans left and came back with five people, including
Mr. Stephens and defendant. She said that Mr. Evans asked if anyone had been “plotting”
on him and then left. Mr. Glenn, the victim, and Tiara Chatman also went outside when the
men left. Laurekka then heard around seven gunshots. Around five minutes later, she heard
a second round of shots. Laurekka later spoke with police and identified Defendant and Mr.
Evans from a photographic lineup.




                                              -4-
        Dr. Tom Deering performed an autopsy on the nineteen-year-old victim. He testified
that the victim died from a gunshot wound to the head, and he determined that if the victim
was shot with a handgun, it was more than two feet away. Dr. Deering said that there was
no alcohol or drugs in the victim’s system.

        Tylere Stephens testified that Defendant was at his house on January 5-6, 2008. At
some point, Mr. Evans stopped by and asked them to go to a party. Mr. Stephens thought
that Mr. Evans said that he had been “disrespected” by someone at the party over a song, and
Mr. Evans indicated that there might be some fighting at the party. Mr. Stephens said that
there were other people in the car with Mr. Evans when he and Defendant got in, including
a “Crip dude” who said that he was “going to probably get to shooting.” They arrived at the
party and remained there for five to ten minutes, and as they were leaving, Mr. Stephens
testified that someone began shooting at them. He said that he and the others ran back to the
car and drove away. Mr. Stephens thought that Mr. Evans was sitting in the front passenger
seat, and Defendant, who was armed with a gun around a foot long, was beside Mr. Stephens
in the back seat near the window.

       Mr. Stephens testified that he and the others drove down the street and attempted to
leave the neighborhood but could not get out and had to turn the car around. He claimed that
they had to drive back by 3117 Wilmoth to get back on the main road. Mr. Stephens testified
that people began shooting at them as they drove back by the party, and Defendant and Mr.
Evans shot back. He told police that he heard eight or nine shots fired out of the car, and he
told them that defendant began shooting all the way down the street until they passed the
house.

       On cross-examination, Mr. Stephens testified that he and the others went to the party
to have a good time. They did not intend to kill or hurt anyone or to confront anyone. Mr.
Stephens testified that Mr. Evans indicated that there might be a fight because he did not
know how everyone would react when they went back to the party. He said that the shooting
by Patrick Carter was unprovoked, and that Mr. Carter was still shooting when they drove
back by the house.

       Co-defendant James Evans, whose case had been severed from Defendant’s, testified
that he had not received a deal from the State in exchange for his testimony. However, he
hoped to obtain one. Mr. Evans testified that he went to the party on Wilmoth Road and
began dancing with Antwanikka Chatman. At first he did not know that she was someone
else’s girlfriend, and her boyfriend pushed him and told him to get away from her. Mr.
Evans testified that he later saw Ms. Chatman’s boyfriend talking to the victim, and Mr.
Evans decided to leave the party. He drove down the street to Tylere Stephens’ house, and
he, Defendant, and Mr. Stephens decided to go back to the party to pick up Mr. Evans’ sister

                                             -5-
and cousin. They walked in the house, got his sister and cousin, and walked back out. Mr.
Evans testified that he got back in the car with Defendant and Mr. Stephens, and as they
pulled away, Patrick Carter began firing at them. He said that he also fired shots into the air
as they drove away. His sister, cousin, and a friend were in another car. Mr. Evans agreed
that he drove “a couple of houses up,” turned around, and drove back by 3117 Wilmoth. He
said that as they drove back by the house, he began “shooting towards where the people was
at.” Defendant was also shooting toward the people.

        On cross-examination, Mr. Evans admitted that he initially told police that he was in
St. Louis at the time of the shooting. He testified that he did not return to the party to hurt
or kill anyone. He also said that there was no arguing with anyone or threats before the
shooting began. However, Mr. Evans testified that some of the people at the party were
giving him a “crazy look,” which made him uncomfortable, and he decided to leave. He said
that he was trying to clear a path at the time of the shooting to make sure that they could get
away.

        Officer Aaron Wigginton of the Metropolitan Nashville Police Department testified
that he responded to a shots fired call around the Wilmoth Road area. The call was later
upgraded to a shooting of a person. He arrived on the scene and saw the unarmed victim
laying on the ground unresponsive with labored breathing. He remained with the victim
until an ambulance arrived.

       Officer James Slusser testified that he was on Brick Church Pike around 1:00 a.m. on
January 6, 2008, writing a report when he heard shots fired near him. Within moments, there
was a report of a shots fired call off of Wilmoth Road. As he was driving down Wilmoth,
the call was upgraded to a shooting of a person. Officer Slusser stopped in front of the
residence at 3117 Wilmoth, and people began emerging from their houses. He was then
directed to where the victim was lying in the driveway.

       Sergeant Brad Turner arrived on the scene and assisted in setting up a perimeter and
securing the scene. He said that because shell casings where found on the scene, the decision
was made to call out the identification section of the police department. Sergeant Turner
then interviewed witnesses and took a statement from Mr. Gilbert. He spoke with several
young people and determined that there had been a party. They denied that the party was
gang-related. On cross-examination, Sergeant Turner testified that Jamie Gilbert indicated
that someone said that “James shot Mario.”

       Detective Warren Fleak, a crime scene investigator, testified that he was dispatched
to 3117 Wilmoth Road during the early morning hours of January 6, 2008. He said that the
residence was not on a dead end street, and there were a number of ways to drive out of the

                                              -6-
area. Detective Fleak photographed the scene and collected twelve nine millimeter shell
casings. He did not collected any .38 caliber casings because a .38 revolver typically retains
the casings. Detective Fleak testified that the shells were located between 3121 and 3123
Wilmoth Road. Ten of them were some distance behind a van that was struck.

       Detective Danny Satterfield testified that he was assigned to investigate the victim’s
death. He interviewed many people, and developed a lead. Defendant’s step-father gave
Defendant’s name as Ezra Taylor Shelton; however, the photographic lineup which Detective
Satterfield put together indicated the name of Patrick Shelton. He also put together a
photographic lineup with Mr. Evans’ photograph and showed both lineups to several
witnesses. Detective Satterfield testified that of the twelve shell casings that were recovered
from the scene, nine were fired from the same weapon, and three were fired from a separate
weapon.

                                           Analysis

I. Sufficiency of the Evidence

      Defendant challenges the sufficiency of the evidence to support his conviction for
second degree murder because he asserts that he acted in self-defense.

        When a defendant challenges the sufficiency of the convicting evidence, 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 on appeal 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).




                                               -7-
        Second degree murder is defined as “[a] knowing killing of another.” T.C.A. § 39-13-
210(a)(1). It is also a “result-of-conduct offense,” and “[t]he statute focuses purely on the
result and punishes an actor who knowingly causes another’s death.” State v. Ducker, 27
S.W. 3d 889, 896 (Tenn. 2000). Thus, as pertinent here, a person acts “knowingly” with
respect to the result of the person’s conduct when the person is aware that the conduct is
reasonably certain to cause the result. Id. § 39-13-302(b).

        Viewing the evidence in a light most favorable to the State, the proof shows that
James Evans went to a party at 3117 Wilmoth Road, and after dancing with Carlton Glenn’s
girlfriend, Antwanikka Chatman, became upset over a song that was played because he felt
“disrespected.” He then got into some type of altercation with Patrick Carter, and the two
flashed gang signs at each other. Mr. Evans then left the party and said that something was
going to “go down” when he returned. He drove down the road to Tylere Stephens’ house
and told Mr. Stephens and Defendant that he had gotten into trouble with someone and had
been “disrespected” by a song. Mr. Evans then asked Defendant and Mr. Stephens to return
to the party with him, and he indicated that there might be some fighting. The three men
returned to the party, and Defendant had his shirt pulled up revealing what appeared to be
a nine millimeter weapon tucked into the waistband of his pants. Mr. Evans then asked if
anyone had been “plotting” against him.

        Although Patrick Carter fired shots at Mr. Evans, Defendant, and Mr. Stephens as they
left the party, he did not hit anything, and the men were able to drive away unharmed.
Instead of leaving the area, Mr. Evans drove to a street light, got out of the car, and fired
shots toward the residence at 3117 Wilmoth. Mr. Gilbert testified that he saw Mr. Evans’
car drive over to Wilmoth Circle and talk with the occupants of an SUV for about five
minutes. Mr. Evans then drove back towards 3117 Wilmoth, where people were gathered
outside the house, and he and Defendant fired their weapons out of the car at the people who
were standing outside. The unarmed victim began running down the driveway and was
fatally shot in the back of the head. Twelve nine millimeter shell casings were recovered
from the scene. Nine were fired from one weapon and three were fired from another.
Although Mr. Stephens and Mr. Evans claimed that they had to drive back by the residence
to escape from the neighborhood, both Antwanikka Chatman and Detective Fleak testified
that there were multiple other routes to leave the area.

        As noted above, Defendant’s challenge to the sufficiency of the evidence is based
solely on his assertion that the State failed to prove beyond a reasonable doubt that he did not
act in self-defense.

       When a defendant relies upon a theory of self-defense, the State bears the
       burden of proving that the defendant did not act in self-defense. State v. Sims,

                                              -8-
       45 S.W.3d 1, 10 (Tenn. 2001). Further, it is well-settled that whether an
       individual acted in self-defense is a factual determination to be made by the
       jury as the sole trier of fact. See State v. Goode, 956 S.W.2d 521, 527 (Tenn.
       Crim. App. 1997); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993).
       “Encompassed within that determination is whether the defendant’s belief in
       imminent danger was reasonable, whether the force used was reasonable, and
       whether the defendant was without fault.” State v. Thomas Eugene Lester, No.
       03C01-9702-CR-00069, 1998 WL 334394, at *2 (Tenn. Crim. App., at
       Knoxville, June 25, 1998), perm. app. denied, (Tenn. Feb. 1, 1999) (citing
       State v. Renner, 912 S.W.2d 701, 704 (Tenn. 1995)). It is within the
       prerogative of the jury to reject a claim of self-defense. See Goode, 956
       S.W.2d at 527. Upon our review of a jury’s rejection of a claim of self-
       defense, “in order to prevail, the [Appellant] must show that the evidence
       relative to justification, such as self-defense, raises, as a matter of law, a
       reasonable doubt as to his conduct being criminal.” State v. Clifton, 880
       S.W.2d 737, 743 (Tenn. Crim. App. 1994).

State v. Phillip Lynn Dorse, No. W2010-00685-CCA-R3-CD, 2011 WL 2306235 (Tenn.
Crim. App. June 7, 2011). In this case, Defendant has not met his burden of showing that
the evidence raises a reasonable doubt that his conduct was criminal. The jury, within its
prerogative, rejected Defendant’s claim of self-defense and convicted him of second degree
murder. This court will not second-guess factual determinations made by the jury.

       Although it is not contested by Defendant, we also conclude that there is sufficient
evidence of criminal responsibility by Defendant. A defendant may be convicted of the
commission of an offense under a theory of criminal responsibility. See T.C.A. § 39-11-
401(b). Criminal responsibility is not a separate offense but “solely a theory by which the
State may prove the defendant’s guilt of the alleged offense, ... based upon the conduct of
another person.” State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). A person is
criminally responsible for the conduct of another if, “[a]cting with intent to promote or assist
the commission of the offense, or to benefit in the proceeds or results of the offense, the
person solicits, directs, aids, or attempts to aid another person to commit the offense[.]”
T.C.A. § 39-11-402(2). Although the proof was not clear as to whether Defendant or Mr.
Evans’ bullet struck the victim, it did show that they were acting in concert, and each was
criminally responsible for the other.

        Based on our review, we find that a rational trier of fact could conclude beyond a
reasonable doubt that Defendant knowingly killed or was criminally responsible for killing
the unarmed victim as he was running away and that Defendant was not shooting the weapon
in self-defense. Defendant is not entitled to relief on this issue.

                                              -9-
II.    Prosecutorial Misconduct

        Defendant argues that the trial court “erred in failing to address an improper statement
made by the prosecution during closing arguments.” Specifically, he challenges the
prosecutor’s statement that Dr. Deering testified that a nine millimeter bullet killed the
victim.

       Counsel for both the prosecution and the defense should be permitted wide latitude
in arguing their cases to the jury. State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998).
However, argument must be temperate, “predicated on evidence introduced during the trial,”
and relevant to the issues being tried. State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).

       Initially, we note that defendant failed to contemporaneously object to the prosecutor’s
statement. Generally, when a prosecutor’s statements were not the subject of a
contemporaneous objection, the issue is waived. Tenn. R. Crim. P. 33 and Tenn. R. App. P.
36(a); see also 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). This Court, however, has in its
discretion periodically reviewed allegations of prosecutorial misconduct even in the absence
of a contemporaneous objection through the process of “plain error” review set forth in Rule
52 of the Tennessee Rules of Criminal Procedure. State v. Armstrong, 256 S.W.3d 243, 249
(Tenn. Crim. App. 2008) (citations omitted). Rule 36(b) provides that:

       [w]hen necessary to do substantial justice, an appellate court may consider an
       error that has affected the substantial rights of an accused at any time, even
       though the error was not raised in the motion for a new trial or assigned as
       error on appeal.

       Tenn. R. Crim. P. 36(b).

        To recognize the existence of plain error, this court must find each of the following
five factors applicable: (a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of
the accused must have been adversely affected; (d) the accused did not waive the issue for
tactical reasons; and (e) consideration of the error is necessary to do substantial justice. State
v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (adopting the factors first articulated in State v.
Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)); see also Tenn. R. Crim. P.
52(b). “[A] complete consideration of all five of the factors is not necessary when it is clear
from the record that at least one of them cannot be satisfied.” State v. Bledsoe, 226 S.W.3d
349, 355 (Tenn. 2007) (citing Smith, 24 S.W.3d at 283).



                                              -10-
       For a “substantial right” of the defendant to have been effected, the error must have
prejudiced the defendant. “In other words, it must have affected the outcome of the trial
court proceedings.” Armstrong, 226 S.W.3d at 250 (citing United States v. Olano, 507 U.S.
725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (analyzing the substantially similar
Fed. R. Crim. P. 52(b)); Adkisson, 899 S.W.2d at 642.

        During rebuttal closing argument, the prosecutor stated: “You heard Dr. Deering say
that a nine millimeter was the kind of bullet that killed him. Well, you also heard one of the
police officers indicate that a nine millimeter bullet could not be shot out of a .38.” At the
close of the prosecutor’s argument, defense counsel pointed out to the trial court that Dr.
Deering did not testify that a nine millimeter bullet killed the victim. The court noted that
defense counsel should have objected at that time, and counsel said, “I should have.” The
following exchange then took place:

       [Defense Counsel]: Well, all I want you to do is tell the Jury that may have
                          been, in fact, what he said. Because he didn’t say that.

       THE COURT:            I wish you had told me at the time, because, now, it’s
                             after all the arguments are over. You can just say you’re
                             not certain. If you can do that, and then we’ll just leave
                             it at that. I’m not saying you did say it. Whatever way
                             you want to say it. And I don’t think you did
                             intentionally at all. So do you want to correct that?

       [Prosecutor]:         Yes, Your Honor.

       THE COURT:            Then that will eliminate that. Okay. Thank you.

       The prosecutor then made the following statement to the jury:

       Well, in spite of the dramatic ending, apparently we’re going to have just a
       little more chat. You are the judges of the facts of this case. And I indicated
       that the doctor testified that a nine milimeter [sic] bullet was the bullet that
       killed Mario Mayes. And the doctor’s report will be in evidence and you will
       be able to read all that. And that is for you to determine in regards to what you
       believe killed him.

Defense counsel did not object to the curative statement made by the prosecutor.




                                             -11-
      In its order denying Defendant’s motion for new trial, the trial court stated:

      The Court finds that during the State’s rebuttal closing argument, General
      Elizabeth Foy stated that the medical examiner testified that a 9mm bullet
      killed the victim in this case. The Court finds that the Defendant objected to
      this statement after the State’s argument had concluded, arguing that the
      medical examiner never made this statement on the witness stand. The Court
      finds that a compromise between both parties was reached whereby the State,
      through General Foy, would make a final statement to the jurors that her
      attempted paraphrasing of the medical examiner’s statement on the issue was
      not evidence and that only the examiner’s testimony itself was to be considered
      as evidence. The Court finds that the Defendant agreed to this compromise
      and therefore waived the issue. The Court also finds that, even if the issue was
      not waived, any error resulting from General Foy’s misstatement was
      ultimately cured by her final statement to the jury. The Court therefore finds
      that this issue is without merit.

At the hearing on the motion for new trial, defense counsel told the court that he did not
“believe at all that [the prosecutor] had any intent to go outside or to be malicious or
underhanded in saying this.”

        Based on our review and given the facts and circumstances of the case, we conclude
that the prosecutor’s comments did not affect the outcome of the trial. Defendant is not
entitled to relief on this issue.

                                     CONCLUSION

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

                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE




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