State of Tennessee v. Michael Keith Clark ( 2021 )

05/10/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 10, 2021 Session
STATE OF TENNESSEE v. MICHAEL KEITH CLARK
Appeal from the Circuit Court for Montgomery County
No. CC2017-CR-312 Jill Bartee Ayers, Judge
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No. M2019-01613-CCA-R3-CD
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The Defendant, Michael Keith Clark, was convicted at trial of possession of 0.5 grams or
more of methamphetamine with intent to sell or deliver, possession of a firearm with
intent to go armed during the commission of a dangerous felony, and possession of drug
paraphernalia. He received an effective sentence of four years in confinement followed
by eight years on community corrections. On appeal, the Defendant argues that the
evidence was insufficient to convict him of possession of a firearm with intent to go
armed during the commission of a dangerous felony, that the trial court violated his right
to confront the State’s witness during cross-examination, and that the State improperly
commented on his decision not to testify in its closing argument. After reviewing the
record, the parties’ briefs, and the applicable law, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.
Roger A. Maness and Colleen A. Hyder, Clarksville, Tennessee, for the appellant,
Michael Keith Clark.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Assistant Attorney General; John W. Carney, Jr., District Attorney General; and
Christopher Dotson and Robert Nash, Assistant District Attorneys General, for the
appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
In this case, law enforcement agents searched the Defendant’s residence after
obtaining information from a confidential informant and completing a controlled
purchase of drugs at the Defendant’s residence. The agents seized guns, cash, drugs, and
drug paraphernalia, resulting in the Defendant and Ms. Maryann Bensley1 being charged
jointly in a twelve-count indictment as follows:
Count Charge
1 Possession of 0.5 grams or more of methamphetamine with intent to sell or
deliver
2 Possession of amphetamine with intent to sell or deliver
3 Possession of alprazolam with intent to sell or deliver
4 Possession of oxycodone with intent to sell or deliver
5 Possession of oxymorphone with intent to sell or deliver
6 Possession of hydrocodone with intent to sell or deliver
7 Simple possession of marijuana
8 Possession of a firearm (a shotgun) with intent to go armed during the
commission or attempt to commit a dangerous felony (citing possession of
methamphetamine with intent to sell or deliver)
9 Possession of a firearm (a handgun) with intent to go armed during the
commission or attempt to commit a dangerous felony (citing possession of
methamphetamine with intent to sell or deliver)
10 Possession of a firearm (a rifle) with intent to go armed during the commission
or attempt to commit a dangerous felony (citing possession of
methamphetamine with intent to sell or deliver)
11 Possessing a handgun with a defaced serial number
12 Possession of drug paraphernalia
Ms. Bensley pleaded guilty to one of the charges, and the State proceeded to trial
against the Defendant. Prior to trial, the State dismissed the charges in counts two
through seven for possession of amphetamine, alprazolam, oxycodone, oxymorphone,
and hydrocodone with the intent to sell or deliver and simple possession of marijuana.
The State pursued the Defendant at trial on the remaining counts for possession of 0.5
grams or more of methamphetamine with intent to sell or deliver, three counts of
possession of a firearm with intent to go armed during the commission or attempt to
1
Although the indictment lists Ms. Bensley’s name as Mary Bensley, we utilize her name as testified to
by Ms. Bensley at trial.
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commit a dangerous felony, possessing a handgun with a defaced serial number, and
possession of drug paraphernalia. The counts pursued by the State were renumbered for
purposes of trial.
The evidence presented at trial relevant to the issues on appeal showed that in the
days leading up to July 21, 2016, Agent Daniel Gagnon with the Nineteenth Judicial
District Drug Task Force (“19th Judicial District DTF”) executed a controlled purchase
of approximately five grams of methamphetamine at the Defendant’s residence using a
confidential informant. On July 21, 2016, agents searched the Defendant’s residence.
Agents Gagnon and Kyle Darnell entered the residence after S.W.A.T. officers secured it.
Inside a bedroom, the agents found a wall-mounted weapon rack containing a rifle and
two shotguns and a gun cabinet containing “long guns,” including a .22 caliber rifle.
Agent Darnell testified that he located a black gun safe in the bedroom and that he and
other agents searched for the keys and eventually opened the safe. They found a bag of
white powder crystalline substance on the top shelf of the safe along with three or four
handguns. Agent Gagnon testified that he seized from the safe a .38 special caliber
revolver with three rounds of ammunition, a Walther PK380 handgun with a magazine
and ammunition, a handgun with its serial number scratched off, and a 9 millimeter
caliber handgun with a round of ammunition in the chamber, a magazine, and six rounds
of ammunition. Agent Gagnon testified that, because the 9 millimeter handgun had a
round in the chamber, it could have been fired by just pulling the trigger. On cross-
examination, Agent Gagnon testified that he did not know if any of the guns were used in
a criminal transaction or the sale of narcotics.
A digital scale was found on top of a pool table in another room. Agent Gagnon
testified that scales are used to weigh narcotics for distribution. Agent Gagnon recalled
that he encountered the Defendant, Ms. Bensley, the Defendant’s daughter, and the
Defendant’s daughter’s boyfriend inside the residence.
Agent Gagnon interviewed the Defendant at the 19th Judicial District DTF office,
and he testified that he vaguely recalled what the Defendant said to him during the
interview. Agent Gagnon testified that “[i]n a nutshell,” the Defendant told him that he
sold narcotics in small quantities to maintain his lifestyle. Specifically, the Defendant
informed Agent Gagnon that he would purchase between an eighth of an ounce and a
quarter of an ounce of methamphetamine and sell it in smaller quantities. On cross-
examination, Agent Gagnon testified that he did not obtain a written statement, that he
did not capture a video or audio recording of the Defendant’s verbal statement, and that
he did not recall if a video or audio recording was produced.
Tennessee Bureau of Investigation Special Agent Cassandra Franklin-Beavers
testified that she analyzed a substance sent to her by Agent Darnell and concluded it was
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2.01 grams of methamphetamine. On-cross examination, she testified that two
independent tests were conducted to confirm the results.
Ms. Maryann Bensley testified that she was sleeping on the couch in the living
room, that the Defendant was asleep in a recliner chair next to the couch, and that the
other two individuals present were asleep in another room when law enforcement entered
the residence. Ms. Bensley agreed that she possessed methamphetamine at the time of
the search and that it was in one of her bags. She testified that she stole the
methamphetamine from a safe in one of the Defendant’s bedrooms the night before
because she was desperate and she knew the Defendant stored methamphetamine there.
The Defendant possessed the keys to the safe, but, according to Ms. Bensley, the
Defendant left the safe open the night she stole the methamphetamine. She explained
that the Defendant had lived at the address for about four or five months and that she had
visited him occasionally. She testified that the Defendant sold methamphetamine out of
the residence and that people would enter the home and go back to the Defendant’s room
with him. She testified that individuals purchasing methamphetamine from the
Defendant would sometimes trade items for the drugs, including firearms and jewelry.
During the search, law enforcement found pills, methamphetamine, cash, and what
appeared to be a marijuana grinder in Ms. Bensley’s purse and her bag. She testified that
she was charged with twelve counts arising out of this case but pleaded guilty to one
count and received an eight-year sentence. The State conditioned her guilty plea on her
testifying truthfully in the Defendant’s trial. She agreed that she had a pending violation
of probation matter, but she clarified during re-direct examination that she was not
promised preferential treatment in that matter in exchange for her testimony. She
testified that she stopped living at the Defendant’s residence around the middle of March
of 2016, when she began living in her car and staying with friends. On re-cross
examination, she testified that a utility service for the Defendant’s residence was in her
name, but she stated that it was never paid.
During the search, agents discovered several pieces of lawncare equipment outside
of the residence. Ms. Bensley testified that the Defendant operated a lawn care business
off and on for about a year leading up to the search.
The jury convicted the Defendant of one count of possession of 0.5 grams or more
of methamphetamine with intent to sell or deliver, one count of possession of a firearm (a
handgun) with intent to go armed during the commission of a dangerous felony, and one
count of possession of drug paraphernalia. The jury acquitted the Defendant of charges
for possessing a handgun with a defaced serial number and two counts of possession of a
firearm with intent to go armed during the commission of a dangerous felony. The
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Defendant received an effective sentence of four years in confinement followed by eight
years on community corrections. This appeal followed.
ANALYSIS
A. Sufficiency of the Evidence
The Defendant argues that the evidence was insufficient to convict him of
possessing a firearm with the intent to go armed during the commission of a dangerous
felony. The Defendant asserts that the evidence fails to establish that he was in
possession of the handgun subject to the conviction and that the State failed to present
sufficient evidence corroborating Ms. Bensley’s testimony as an accomplice with regard
to the element of possession. The State responds that the evidence is sufficient to support
the conviction. We agree with the State.
Reviewing the sufficiency of the evidence supporting a criminal conviction
requires this court to first “examine the relevant statute(s) in order to determine the
elements that the State must prove to establish the offense.” State v. Stephens, 521
S.W.3d 718, 723 (Tenn. 2017). Next, we determine “‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” Id. at 724(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). If the evidence is insufficient to
support the finding of guilt beyond a reasonable doubt made by the trier of fact, its
finding of guilt “shall be set aside.” Tenn. R. App. P. 13(e). Once a defendant has been
convicted, the presumption of innocence is replaced with a presumption of guilt on
appeal. Turner v. State, 394 S.W.2d 635, 637 (Tenn. 1965). To overcome a presumption
of guilt on appeal, the defendant bears the burden of showing the evidence presented at
trial was “insufficient for a rational trier of fact to find guilt of the defendant beyond a
reasonable doubt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing State v.
Patton, 593 S.W.2d 913 (Tenn. 1979)).
The State “is entitled to the strongest legitimate view of the trial evidence and all
reasonable and legitimate inferences which may be drawn from the evidence.” State v.
Evans, 108 S.W.3d 231, 237 (Tenn. 2003) (citing State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999); State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997)). This court may not reweigh or reevaluate the evidence,
because “[q]uestions about the credibility of witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact.” Id. at 236 (citing Bland, 958 S.W.2d at 659). After a guilty verdict has been
entered, the testimony of the State’s witnesses is accredited, and all conflicts in the
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testimony are resolved in favor of the theory of the State. State v. Nichols, 24 S.W.3d
297, 301 (Tenn. 2000) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)).
A defendant’s guilt may be supported by direct evidence, circumstantial evidence,
or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343
S.W.2d 895, 897 (Tenn. 1961)). Whether the evidence underlying the defendant’s
conviction at trial was direct or circumstantial, the same standard of review applies. State
v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
Here, the Defendant challenges the sufficiency of the evidence underlying his
conviction for possession of a firearm with the intent to go armed during the commission
of or attempt to commit a dangerous felony. T.C.A. § 39-17-1324(a). “It is an offense to
possess a firearm or antique firearm with the intent to go armed during the commission of
or attempt to commit a dangerous felony.” Id. A person acts intentionally “with respect
to the nature of the conduct or to a result of the conduct when it is the person’s conscious
objective or desire to engage in the conduct or cause the result.” T.C.A. § 39-11-302(a).
“A felony involving the sale, manufacture, distribution or possession with intent to sell,
manufacture or distribute a controlled substance of controlled substance analogue” is a
dangerous felony. T.C.A. § 39-17-1324(i)(1)(L).
“Possession may be actual or constructive.” State v. Robinson, 400 S.W.3d 529,
534 (Tenn. 2013) (citing Shaw, 37 S.W.3d at 903). “[A]ctual possession refers to
physical control over an item,” while “constructive possession requires only that a
defendant have ‘the power and intention to exercise dominion and control over’ the item
allegedly possessed.” State v. Fayne, 451 S.W.3d 362, 370 (Tenn. 2014) (quoting Shaw,
37 S.W.3d at 903). Whether a defendant constructively possessed contraband “depends
on the totality of the circumstances in each case,” and constructive possession “may be
proven by circumstantial evidence.” Robinson, 400 S.W.3d at 534 (citing T.C.A. § 39-
17-419 (2006)).
A criminal defendant in Tennessee cannot be convicted “solely upon the
uncorroborated testimony of an accomplice” State v. Shaw, 37 S.W.3d 900, 903 (Tenn.
2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994), superseded by statute
as stated in State v. Odum, 137 S.W.3d 572, 583 (Tenn. 2004); Monts v. State, 379
S.W.34, 43 (Tenn. 1964), overruled on other grounds by State v. Collier, 411 S.W.3d
886, 899 (Tenn. 2013)). “An accomplice is defined as a person who knowingly,
voluntarily[,] and with common intent unites with the principal offender in the
commission of the crime.” State v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997)
(citing State v. Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992)). Generally, a
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witness qualifies as an accomplice if “the alleged accomplice could be indicted for the
same offense charged against the defendant.” State v. Allen, 976 S.W.2d 661, 666 (Tenn.
Crim. App. 1997).
Our supreme court has stated that in order to properly corroborate accomplice
testimony,
“[T]here must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the inference, not
only that a crime has been committed, but also that the defendant is
implicated in it; and this independent corroborative testimony must be also
include some fact establishing the defendant’s identity. This corroborative
evidence may be direct or entirely circumstantial, and it need not be
adequate, in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged. It is not necessary
that the corroboration extend to every part of the accomplice’s evidence.”
Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). The corroborating
evidence need only be “slight.” State v. Griffs, 964 S.W.2d 577, 589 (Tenn. Crim. App.
1997). The jury determines whether sufficient corroboration exists. Shaw, 37 S.W.3d at
903; Anderson, 985 S.W.2d at 16.
The Defendant cites State v. Nicholaus Jones, No. W2018-01421-CCA-R3-CD,
2020 WL 974197 (Tenn. Crim. App. Feb. 27, 2020), no perm. app. filed, as support for
his argument that he did not constructively possess the handgun found in the safe. In that
opinion, the defendant and his codefendant were present when police executed a warrant
to search a motel room. Id. at *1. Law enforcement found drugs, a handgun, and a
digital scale in the motel room and $118 on the defendant’s person. Id. at *2. The
defendant was convicted at trial for several counts related to his possession of the
contraband. Id. at *1. In reversing the defendant’s convictions, a panel of this court
concluded that the State failed to prove the defendant possessed the contraband because
there was no proof regarding who rented the room or possessed the room key, how long
the defendant had been in the room and how long he intended to stay, or whether “any of
the bags or clothing in the room belonged to him.” Id. at *10. The court also noted that
the denominations of currency found on the defendant’s person failed to suggest he had
been selling the narcotics, and no contraband was found on the defendant’s person, nor
were there fingerprints shown to connect him with the contraband. Id.
When viewed in the light most favorable to the State, the evidence was sufficient
to support the Defendant’s conviction for possession of a firearm with the intent to go
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armed during the commission of a dangerous felony. During the search of the
Defendant’s residence, Agents Gagnon and Darnell seized a white powder crystalline
substance on the top shelf of a black gun safe in a bedroom that Ms. Bensley testified
belonged to the Defendant. The substance was later identified as methamphetamine.
Three or four handguns were located next to the methamphetamine, and Agent Gagnon
testified that at least one of the handguns had a round of ammunition in the chamber and
other handguns had magazines loaded with ammunition. The Defendant admitted to
Agent Gagnon during an interview that he sold methamphetamine in small quantities to
support his lifestyle. The agents also found methamphetamine in Ms. Bensley’s purse.
Ms. Bensley testified that she obtained the methamphetamine found in her purse by
stealing it from the Defendant’s safe. According to Ms. Bensley, the Defendant
possessed the keys to the safe but left it open on the night she stole the
methamphetamine. She testified that the Defendant had lived at the address for about
four or five months and that she visited him occasionally. She also testified that the
Defendant dealt methamphetamine out of the residence, that she knew he stored the
methamphetamine there, and that people would enter the residence and go back to the
Defendant’s room with him. She explained that, on occasion, the Defendant would trade
methamphetamine for items like guns or jewelry. In addition, agents found several
pieces of lawn equipment outside of the residence and Ms. Bensley testified that the
Defendant operated a lawn care business leading up to the search. The circumstances in
this case are materially different than those at issue in Nicholas Jones, because the
evidence presented a reasonable inference that the Defendant owned or controlled the gun
safe and the contents inside and was not merely present inside the residence.
Part of the Defendant’s argument rests on his contention that Ms. Bensley’s
testimony was uncorroborated. However, the Defendant’s conviction was not based
solely on uncorroborated accomplice testimony. See Shaw, 37 S.W.3d at 903 (A criminal
defendant in Tennessee cannot be convicted “solely upon the uncorroborated testimony
of an accomplice.”). In addition to Ms. Bensley’s testimony, the evidence showed that
law enforcement completed a controlled purchase of drugs at the Defendant’s residence
in the days leading up to the search and that he admitted to Agent Gagnon that he sold
methamphetamine in small quantities. As a result, there was additional evidence from
which the jury could infer the Defendant possessed the methamphetamine and guns found
inside the safe. In any event, the evidence presented at trial exceeded the minimal burden
required for the jury to find that sufficient corroboration existed. See Griffs, 964 S.W.2d
at 589; Shaw, 37 S.W.3d at 903; Anderson, 985 S.W.2d at 16. Accordingly, we conclude
that the evidence was sufficient to support the Defendant’s conviction for possession of a
firearm with intent to go armed during the commission of a dangerous felony.
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B. Limitation of the Defendant’s Right to Cross-Examine
The Defendant argues that the trial court violated his right to confront the State’s
witness at trial by restricting his cross-examination of Agent Gagnon. A criminal
defendant has the right to confront witnesses under the Sixth Amendment of the United
States Constitution and Article I, section 9, of the Tennessee Constitution. To show that
the trial court violated the right to confront, the defendant must show that “‘he was
prohibited from engaging in otherwise appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness, thereby exposing to the jury the facts
from which jurors could appropriately draw inferences relating to the reliability of the
witness.’” State v. Black, 815 S.W.2d 166, 177 (Tenn. 1991) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 680 (1986)); see State v. Ariel K. Robinson, No. M2020-00058-
CCA-R3-CD, 2021 WL 1020913, at *33 (Tenn. Crim. App. Mar. 17, 2021)
However, the right to confrontation is not unlimited, because the trial court has the
discretion to decide the propriety, scope, manner, and control of the cross-examination of
witnesses. State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995) (citations
omitted). Accordingly, “a defendant’s right to confrontation does not preclude a trial
court from imposing limits upon cross-examination which take into account such factors
as harassment, prejudice, issue confusion, witness safety, or merely repetitive or
marginally relevant interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim.
App. 1994) (citations omitted). Appellate courts may not disturb a trial court’s limitation
of cross-examination unless the defendant shows that there has been an unreasonable
restriction of the right to confront. Dishman, 915 S.W.2d at 463 (citing State v. Fowler,
373 S.W.2d 460, 466 (Tenn. 1963); State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim.
App. 1984)).
In the Defendant’s arrest warrant, an affidavit completed by Agent Gagnon stated
that, during the search, he seized the following items:
4 grams of Crystal Methamphetamine in two separate bags, nine 20mg
Amphetamine pills (Sch. II), seven 1mg Alprazolam pills (Sch. IV), ten 30
mg Oxycodone pills (Sch. II), fifteen 15mg Oxymorphone pills (Sch. II),
two mg Oxycodone pills (Sch. II), one 7.5mg Hydrocodone pill (Sch. II),
twelve 10mg Hydrocodone pills (Sch. II), approximately three grams of
Marijuana, five rifles, three shotguns, and six handguns to which one
handgun had the serial number filed off of it and two handguns [w]ere
loaded with a round in the chamber laying within inches of the
aforementioned narcotics. Also found [w]ere several hypodermic needles,
numerous digital scales and pipes used to smoke marijuana.
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As discussed above, the State dismissed the charges related to possession of
amphetamine, alprazolam, oxycodone, oxymorphone, hydrocodone, and marijuana prior
to trial. An unredacted forensic report generated by Special Agent Franklin-Beavers
listed three substances, one being the methamphetamine for which the Defendant was
charged and the two others being Pregabalin and Butalbital for which the Defendant was
not charged. At trial, the State offered a redacted forensic report which listed only the
methamphetamine.
During the cross-examination of Agent Gagnon, the Defendant sought to discredit
his trial testimony by questioning him about discrepancies between the redacted and
unredacted forensic reports, the several drug charges the State dismissed prior to trial,
and Agent Gagnon’s grand jury testimony (the substance of which is not clear from the
record). The Defendant attempted to raise through this line of questioning the inference
that Agent Gagnon testified falsely at the grand jury, testified at the grand jury in
disregard to the contents of the unredacted forensic report, or conducted an incomplete or
incompetent investigation. The trial court permitted the Defendant to make an offer of
proof.
Agent Gagnon testified that he did not know the narcotics seized during the search
were sent to a lab, that he did not know that the forensic results from the lab were sent to
his office, and that he never saw the report or a redacted report utilized by the State
before going to testify before the grand jury in March of 2017. Agent Gagnon conceded
that he could have obtained the forensic report by asking for it, but he stated that he did
not know that it existed even though the report indicated it was addressed to him. He
testified that reports that were sent to his office are password-protected and that he did
not have access to them. He testified that he attempted to establish probable cause to
support the charges sought with the grand jury by sorting the drugs found and using an
identification reference book.
The Defendant argued that the cross-examination was relevant to create reasonable
doubt on the counts pursued at trial. The State argued that the cross-examination was
irrelevant and did not show Agent Gagnon was dishonest or testified inconsistently. The
trial court found that the proposed testimony was irrelevant and confusing for the jury,
credited Agent Gagnon’s explanation of how he identified the drugs underlying the
dismissed counts in the indictment, and declined to allow the Defendant to cross-examine
Agent Gagnon regarding the dismissed counts and his related grand jury testimony. The
Defendant declined the option to pursue the issue related to the additional substances in
the unredacted forensic report. The Defendant appeals on the ground that the trial court
violated his right to confront the State’s witness at trial.
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After review, we conclude the trial court’s limitation of the Defendant’s right to
cross-examine Agent Gagnon was reasonable. During the offer of proof, Agent Gagnon
testified that he sorted drugs seized from the Defendant’s home and used a reference
book to identify them. Then, without knowledge that the drugs had been tested and
without knowledge that a forensic report had been rendered, he testified at the grand jury
about his investigation in March of 2017. Grand jury proceedings are to remain secret,
subject to limited exceptions. State v. Carruthers, 35 S.W.3d 516, 533 (Tenn. 2000);
State v. Penley, 67 S.W.3d 828, 833 (Tenn. Crim. App. 2001). As we have observed,
“‘an accused seeking disclosure of grand jury testimony must demonstrate a
particularized need for the materials sufficient to outweigh the policy in favor of
secrecy.’” State v. Khaleefa Lambert, No. M2011-01797-CCA-R3-CD, 2013 WL
791618, at *8 (Tenn. Crim. App. Mar. 4, 2013) (quoting 22A C.J.S. Criminal Law § 750
(2012)). “‘An allegation of possible inconsistencies, or speculation as to inconsistencies
in the testimony of other witnesses without specific references to those alleged
inconsistencies will not be adequate to show particularized need.’” Id. (quoting 22A
C.J.S. Criminal Law § 750 (2012)). The Defendant merely speculates that Agent
Gagnon’s grand jury testimony was inconsistent with his trial testimony. Accordingly, he
failed to demonstrate a particularized need to obtain the grand jury testimony and cannot
show that the trial court erred in excluding it from trial.
We also conclude that the trial court did not err in excluding the testimony on the
grounds that it was irrelevant and potentially confusing for the jury. By failing to identify
any inconsistencies in Agent Gagnon’s testimony, he failed to demonstrate the relevance
of this evidence to the trial court. See Tenn. R. Evid. 401 (Evidence is relevant if it has
“any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.”). Additionally, pursuing this line of questioning would have required the jury
to consider the effect of Agent Gagnon’s grand jury testimony, an unredacted forensic
report referencing controlled substances which the Defendant had not been charged with
possessing, and evidence relating to drugs not in the unredacted forensic report but for
which charges had been filed and dismissed. These issues posed a risk that the jury
would confuse the issues before it, and the trial court properly limited the cross-
examination to mitigate that risk. See Tenn. R. Evid. 403 (“Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.”). The trial court
permitted the Defendant to cross-examine Agent Gagnon extensively about his
investigation leading up to the search, the search itself, and the interview during which
the Defendant confessed to selling drugs. Therefore, the trial court did not violate the
Defendant’s right to confrontation, and the Defendant is not entitled to relief.
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C. Improper Closing Argument
During closing argument and related to the issue on appeal, the Defendant
conceded that law enforcement found methamphetamine and guns in the residence;
however, he challenged whether the residence was his, whether he possessed the
methamphetamine or guns, whether he intended to possess the guns during the
commission of a dangerous felony, and whether he admitted to Agent Gagnon to selling
methamphetamine. During rebuttal, the State began its argument by stating, “The proof
you heard yesterday was uncontroverted. That means, it wasn’t negated. It wasn’t
denied.”
The Defendant’s trial counsel objected on the ground that the State commented on
the fact that the Defendant did not testify, and the prosecution agreed to move on from
that line of argument. The Court stated, “Yes. That’s clear in the instructions. He’s not
required to do that.” The Court also emphasized, “It’s the State’s burden.” Oral
argument proceeded to its conclusion. After the jury was released to begin deliberation,
the Defendant again objected to the State’s argument and moved for a mistrial. The trial
court denied the Defendant’s motion for a mistrial, and it explained, “There are clear
instructions that the Defendant cannot be penalized in any way for his failure to testify,
and I think that takes care of it.” In its written order denying the Defendant’s motion, the
trial court found,
The State did not improperly submit to the jury that its evidence was
uncontroverted. The State’s mention of the uncontroverted nature of the
evidence did not constitute improper comment under either option of the
test argued by the Defendant. Further, this Court’s instructions to the jury
on two separate occasions established that the jury could not make any
inference whatsoever against the Defendant for his failing to testify at the
trial, and the jury is presumed to have followed those instructions. This
issue is without merit.
The Defendant contends that the prosecutor’s statement improperly suggested that
he had an obligation to rebut the State’s case, and he argues that the statement was
prejudicial and was made at a time “when neither the trial court nor [his trial counsel]
could do anything to cure the harm without risk of exacerbating it.” The State argues that
the prosecutor’s argument was not a comment on the Defendant’s failure to testify and
that it was in response to the Defendant’s closing argument. The State contends that the
argument was meant to highlight the strength of the State’s case.
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Both the United States Constitution and the Tennessee Constitution “guarantee
criminal defendants the right to remain silent and the right not to testify at trial.” State v.
Jackson, 444 S.W.3d 554, 585 (Tenn. 2014). Accordingly, the prosecution should not
improperly comment on a defendant’s decision not to testify directly or indirectly. Id. at
586, 587. To determine whether a prosecutor’s remark amounts to an improper comment
on the right to remain silent or not testify depends on “(1) whether the prosecutor’s
manifest intent was to comment on the defendant’s right not to testify; or (2) whether the
prosecutor’s remark was of such a character that the jury would necessarily have taken it
to be a comment on the defendant’s failure to testify.” Id. (citation omitted). If a
prosecutor’s argument is found to be improper, we determine if the improper argument
amounts to reversible error by considering whether the comments had a prejudicial effect
on the jury. State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999).
Generally, “[a]rgument by [c]ounsel for the State to the fact that the evidence of
the State is uncontradicted is not improper as drawing attention to the jury to the failure
of the defendant to testify.” Schweizer v. State, 399 S.W.2d 743, 748 (Tenn. 1966); see
State v. Rice, 638 S.W.2d 424, 427 (Tenn. Crim. App. 1982). However, “a prosecutor’s
comments on the absence of any contradicting evidence may be viewed as an improper
comment on a defendant’s exercise of the right not to testify when the defendant is the
only person who could offer contradictory proof.” Jackson, 444 S.W.3d at 586 n.45.
Here, during the State’s rebuttal argument, the prosecutor discussed that the
evidence was uncontroverted, unrebutted, and not denied. This court has previously held
that these types of arguments generally do not improperly comment on the Defendant’s
exercise of his right to not testify. See Schweizer, 399 S.W.2d at 748; Rice, 638 S.W.2d
at 427. The prosecutor’s argument cannot be identified as either an intentional comment
on the Defendant’s right to not testify or one that the jury would necessarily have taken as
a comment on the Defendant’s failure to testify. See Jackson, 444 S.W.3d at 586-87.
The prosecutor made the argument during rebuttal in response to the Defendant’s
argument at trial that he conceded that methamphetamine and guns were seized from the
residence, and the prosecutor’s argument did not reference his failure to testify
specifically. Additionally, Ms. Bensley or one of the two other occupants of the
residence could have offered contradicting proof, see Jackson, 444 S.W.3d at 586 n.45,
so the prosecutor’s argument that the evidence was unrebutted was not improper.
Accordingly, we conclude that the prosecutor did not improperly comment on the
Defendant’s right to not testify and that the Defendant is not entitled to relief.
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CONCLUSION
Based upon the foregoing reasons, we affirm the judgments of the trial court.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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