State of Tennessee v. Nicos Broadnax and Aaron Cook ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 3, 2015
STATE OF TENNESSEE v. NICOS BROADNAX AND AARON COOK
Appeal from the Criminal Court for Shelby County
No. 12-02761 James C. Beasley, Jr., Judge
No. W2014-00506-CCA-R3-CD - Filed May 15, 2015
A Shelby County jury convicted Nicos Broadnax and Aaron Cook of aggravated robbery.
The trial court ordered Defendant Broadnax, as a Range I standard offender, to serve
eleven years, and ordered Defendant Cook, as a multiple offender, to serve nineteen years
in the Tennessee Department of Correction. On appeal, Defendant Broadnax asserts that
the evidence is insufficient to support his conviction. Defendant Cook also challenges
the sufficiency of the evidence but additionally asserts that: (1) the trial court improperly
declined to strike the jury venire following notice that the jury pool was tainted by
comments from observers at the trial; (2) the prosecutor=s misstatement of facts during
closing argument unfairly prejudiced him; and (3) his sentence is excessive. After a
thorough review of the record and applicable law, we affirm the trial court=s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.
Stephen C. Bush, Public Defender, and Tony N. Brayton, Assistant Public Defender,
Memphis, Tennessee, for the appellant, Nicos Broadnax.
Ebony N. Dawkins, Memphis, Tennessee, for the appellant, Aaron Cook.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District
Attorney General; and Jose Leon, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Background and Facts
A. At Trial
This case arises from the beating and robbery of Oscar Rivera, the victim, in
October 2011, for which a Shelby County grand jury indicted the defendants for
aggravated robbery. At a trial on the charges, the parties presented the following
evidence: The victim testified that he was forty-seven years old and a restaurant owner.
He recalled that on October 19, 2011, at a little after 11:00 p.m., he was walking on
Macon Road towards Wells Station in Memphis, Tennessee. He explained that he had
parked his truck at a Texaco station on Wells Station and, from there, walked to a nearby
Mexican bakery that he found to be closed. As he walked back to his truck he heard
Asome noise@ and turned around to see Athree or four black men@ behind him.
The victim testified that the men were yelling and cursing at him, so he began to
run. The victim said that a gun was also aimed at him. As he ran away from the men,
he stumbled and fell to the ground. The victim said that, after falling, he attempted to
turn around to see the men, and one of the men hit him in the back of the head with the
gun. One of the men demanded money from the victim, and the victim pointed to his
back pocket where he had Aa little bit over@ $200 in cash. The victim said there was
blood running down his face at this point. One of the men grabbed both the cash and the
victim=s T-Mobile cell phone. The victim said he Ahad no option@ but to allow the men to
take his belongings because they had a gun pointed at his face, and the men had beaten
him. He stated that the men beat him on his head and face, leaving him in the fetal
position on the ground. He remembered seeing a white car and Asomebody yell[ing]
something@ before one of the men kicked him Aon [his] testicles.@
The victim testified that he was Ain a bad condition,@ but, when he got up off the
ground, the men began running away from him. He stated that he walked toward the gas
station. The victim could not provide a Ageneral description@ of his assailants but
confirmed that they were Ayoung,@ AAfrican American@ men. He said that he never spoke
to any of the assailants. Once he arrived back at the gas station, a ALatin person@ told
him that he would call an ambulance. After five minutes, the victim observed a Awhite
person@ talking with the police about the direction in which his assailants had fled. The
victim confirmed that he did not know any of the men who attacked him and did not owe
any of them money. The victim was taken to the hospital where he stayed overnight and
was released the following day. The victim identified scars on his face and head that
remained from this incident. After his release from the hospital, the victim stayed home
for two weeks recuperating, unable to go to work during this time.
On cross-examination by Defendant Broadnax=s attorney, the victim said that the
area where this incident occurred was not well-lit. He said that he was able to run
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approximately eight to ten steps before he fell and that the men reached him quickly after
he fell to the ground. The victim described his fall, saying that he caught himself with
his arms before his face hit the ground. He stated that only two of the men beat him.
The victim said that he believed he was hit in the head with a gun rather than a fist
because the blow caused a laceration.
On cross-examination by Defendant Cook=s attorney, the victim stated that one of
the men who approached him that night wore a red t-shirt. He confirmed that he was
unable to identify any of the people involved in the beating and robbery that night.
Jeffrey Bartram testified that on October 19, 2011, he was at his residence on
Macon Road. He recalled that he heard Ahollering and screaming@ outside and looked
out the window in his front door. Outside, he saw three black men standing over a
hispanic man, beating and robbing him. Mr. Bartram said that he could hear the black
men yelling at the victim to give them Awhat [the victim] got in [his] pockets.@ He
observed the men striking the victim in the face with a silver handgun, and he watched as
the men took a cell phone from the victim. Mr. Bartram called the police and then
stepped outside his house and Aeverybody scattered.@ He said that two of the men ran
down the opposite side of the street on the sidewalk to a house directly across the street
on the corner of Wells Station and Macon Road. The third man spoke with someone in a
vehicle that had pulled up before running westbound down the middle of Macon Road.
Mr. Bartram said the victim remained on the ground in the fetal position after his
assailants fled. The victim then got up off the ground and Astaggered@ toward a Texaco
station down the street.
Mr. Bartram testified that, while still on the telephone with dispatch, he walked to
the Texaco station to check on the victim. He found the victim inside the store of the gas
station Ableeding everywhere.@ The dispatch operator instructed Mr. Bartram to return to
his house to wait for police. The police later arrived and took Mr. Bartram to the Texaco
station where the police had detained several suspects. Mr. Bartram explained that the
beating and robbery occurred next to a street light, so the participants were Apretty much
in the spotlight of the street light.@ While at the Texaco station, Mr. Bartram identified
the two suspects that he had observed beating the victim. He also identified in court
Defendant Broadnax and Defendant Cook as the men he had observed beating and
robbing the victim. Mr. Bartram recalled that one of the assailants wore a Ahoodie,@ one
wore a striped Polo shirt, and one wore a white shirt. He identified the Ahoodie@ that one
of the men wore.
Mr. Bartram described the involvement of the three men in this incident as
follows:
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They were standing over him, all three of them. [The victim] was
laying in a ball in the middle of the street and they were standing over him
just mercilessly beating him. Kicking him, punching him. . . . One of
them was holding the gun and pointing it at [the victim], then they hit [the
victim] with it, then they=d hold [the gun] on [the victim] for a little bit
longer, then they hit [the victim] with it again.
On cross-examination by Defendant Broadnax=s attorney, Mr. Bartram testified
that these events occurred around 11:00 p.m. He estimated that the beating occurred
approximately twenty or thirty feet from his front door, where he was when he saw the
incident. Mr. Bartram agreed that he testified at the preliminary hearing in this matter
that Defendant Broadnax did not have the gun but that he could not now recall if
Defendant Broadnax had possessed the gun. He confirmed that there was nothing
obstructing his view of the beating and robbery that night. Mr. Bartram stated that he did
not actually see the defendants go into the house on Macon Road but that he watched
them enter the yard of that residence.
Eduardo Rodriguez testified that he worked at the Texaco station on the night of
these events. He recalled that around 11:00 p.m., he observed Aa few young African
American guys@ running to a house located across the street from the Texaco station.
Five minutes later, he observed the victim, who appeared to be Adisfigured from a
beating,@ walking toward the Texaco station. Mr. Rodriguez went outside and attempted
to assist the victim and then called an ambulance.
Lindsey Johnson testified that, on the night of October 19, 2011, she was in a
house on Macon Road across the street from the Texaco station. She stated that in the
house with her were Defendant Broadnax, Defendant Cook, Latasha Payton, and Joseph
Washington. She said that she had known Defendant Cook for three years and
Defendant Broadnax for two years and identified both men in the courtroom. She
recalled that around 11:00 p.m., Defendant Broadnax and Defendant Cook entered the
house and told Ms. Johnson that a AMexican had jumped on@ them, and they had gone
Aover there and they both beat [the victim=s] a**.@ They instructed Ms. Johnson that, if
police arrived, she was to tell the police that Athey ain=t heard from him.@ She said the
men mentioned a T-Mobile cell phone, and Mr. Washington responded that he knew how
to Aunlock it.@ Ms. Johnson stated that she observed a weapon with a black handle inside
the residence that night.
On cross-examination by Defendant Broadnax=s attorney, Ms. Johnson testified
that it was Defendant Cook who had the victim=s cell phone on the night of October 19,
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2011. Ms. Johnson clarified that she did not see a gun that night but rather saw a gun
grip sitting on a chair before the defendants arrived.
James Moore, a Memphis Police Department officer, testified that he responded to
a house on the corner of Macon Road and Wells Station after 11:00 p.m. on October 19,
2011. Once there, he worked with other officers to create a perimeter around the
residence to ensure that no one entered or exited the residence. Police officers searched
the residence, and upon their exit, one of the officers observed a hand in the garage.
Officer Moore, along with several other officers, re-entered the residence and went
through the kitchen into the garage. Once in the garage, Officer Moore observed a
person hiding under a tarp, and he took this person into custody. Officer Moore
identified Defendant Cook as the person found in the garage. Another suspect was also
found in the garage and a third individual was found at the scene but not inside the
garage.
Justin Sheriff, a Memphis Police Department officer, testified that he conducted
the crime scene investigation of the residence at the intersection of Macon Road and
Wells Station. At this location was a single story residence with white trim. Other
police officers had already secured the residence by the time Officer Sheriff arrived.
Officer Sheriff photographed a stainless steel pistol that the police had found behind a
washing machine and dryer inside the residence. Officer Sheriff opened up the cylinder
of the pistol and found live rounds inside the cylinder. In a bedroom of the residence,
Officer Sheriff collected a purple bag that had twelve rounds of .38 special ammunition
inside it. Officer Sheriff identified other photographs that he took at the scene. One of
the photographs depicted a pistol grip that police officers found in the refrigerator,
separate from the weapon.
Officer Sheriff testified that the pistol was a Ruger SP101. He identified a
photograph of the pistol and the serial number on the pistol. Officer Sheriff identified
the five Alive rounds@ taken from inside the pistol.
On cross-examination by Defendant Broadnax=s attorney, Officer Sheriff
confirmed that the pistol was found inside a sock behind the washer and dryer. He did
not recall any blood being on the sock or on the pistol.
Adrian Friday, a Memphis Police Department officer, testified that he was
dispatched to a robbery near Macon Road and Wells Station. When he arrived, police
officers had already surrounded the house. When the homeowner exited his residence,
Officer Friday provided him with a consent to search form, which the homeowner signed.
After receiving the consent to search, four police officers went inside to search the
5
residence. After a short period of time, two of the officers returned outside and asked
Officer Friday if he would assist in the search. As Officer Friday approached the front
door of the house from the south end of the outside of the house, he shone his flashlight
through the garage window and observed Aan arm of a male black@ Asticking out.@ He
alerted the other officers that someone was hiding inside the garage, and the officers
made entry into the garage through the house.
Officer Friday testified that one male was found by the garage door and the other
was hiding inside a pile of trash bags and clothes. Both men were taken into custody and
escorted out of the residence. Officer Friday recalled that Defendant Cook was one of
the men taken into custody and that he was wearing a blue Ahoodie@ at the time of his
arrest. After the men were taken out of the residence, police officers continued to search
the residence for a gun. Officer Friday said that he found Athe butt of the gun@ inside the
bottom right drawer of the refrigerator and the Amain J frame@ of the gun Aup under a
washing machine@ inside a white sock. Officer Friday estimated that the garage door was
approximately three feet from the washing machine and dryer.
Glenn Barber, a Memphis Police Department officer, testified that three suspects
were developed in this case: Defendant Broadnax, Defendant Cook, and Joseph
Washington. Sergeant Barber said that he interviewed Defendant Broadnax and
Defendant Cook. During the interview, Defendant Broadnax stated that he was involved
in the robbery and Aa [cell phone] was taken.@ He told police that he saw the victim
walking down Macon Road and chased him. The victim fell to the ground after being
struck one time by Defendant Broadnax. Once on the ground, the victim was hit three or
four more times. Defendant Broadnax told the police that, after the incident, he went to
AJoe=s house@ where he gave the gun, a silver .38 revolver with a black handle, to
ALindsey.@ Defendant Broadnax stated that he had the gun in his waistband at the time of
the robbery but used his fist to punch the victim. When he saw police outside the house,
he hid inside the garage.
Sergeant Barber testified that Defendant Cook said that he was having a bad day
and Asomeone@ told him he should release his frustration by engaging in a fight.
Defendant Cook stated that he saw the victim walking down Macon Road and began to
run behind the victim. The victim also began running and, when Defendant Cook caught
up to the victim, the victim was already on the ground. Defendant Cook explained the
blood on his clothing by telling Sergeant Barber that the victim attempted to pull up off
the ground by holding on to Defendant Cook. Defendant Cook then went to AJoe=s house
and was handed a cell phone.@ Sergeant Barber recalled that Defendant Cook told him
that, once he was back at the residence, Apeople were asking why he was kind of
nervous,@ and Defendant Cook responded that Ahe just got in a fight with a Mexican.@
Defendant Cook told Sergeant Barber that, when he noticed the police were outside the
6
residence, he threw the cell phone on the bed and hid in the garage. When asked if
Defendant Cook ever Amention[ed] anything about a weapon,@ Sergeant Barber
responded, A[h]e said it was a silver .38 revolver.@ Defendant Cook denied any
involvement in a robbery when questioned by the police.
Based on this evidence, the jury convicted Defendant Broadnax and Defendant
Cook of aggravated robbery.
B. Sentencing Hearing
At the sentencing hearing, the victim testified that, following these events, his life
had been Avery stressful.@ The victim sustained injuries to his left eye and, at the time of
the hearing, was still experiencing difficulty with his sight. His doctor told him that
there was a hemorrhage and scar tissue in his eye that was impacting his eyesight. He
stated that he also had been undergoing treatment for cancer for approximately a year.
The colon cancer was detected three months after the beating and robbery. His doctors
had told him that, following his cancer treatment, he will likely need eye surgery
otherwise he may lose his eyesight in the damaged eye. He stated that, prior to the
assault, he had perfect vision. The victim testified that he was no longer able to work as
much as he used to and now his wife and family work in his place. He explained that he
moved the location of his restaurant and his home Afor fear of having that happen to [him]
again.@
After hearing the evidence and in consideration of the purposes of sentencing, the
trial court sentenced Defendant Broadnax as a Range I, standard offender, to eleven years,
and Defendant Cook as a Range II, multiple offender, to nineteen years in the Tennessee
Department of Correction. It is from these judgments that the defendants now appeal.
II. Analysis
On appeal, Defendant Broadnax asserts that the evidence is insufficient to support
his conviction. Defendant Cook also challenges the sufficiency of the evidence but
additionally asserts that: (1) the trial court improperly declined to strike the jury venire
following notice that the jury pool was tainted by comments from observers at the trial;
(2) the prosecutor=s misstatement of facts during closing argument unfairly prejudiced
him; and (3) his sentence is excessive.
A. Sufficiency of the Evidence
Both defendants challenge the sufficiency of the evidence supporting their
convictions. The defendants assert that the State failed to present sufficient proof that
7
either defendant employed a deadly weapon during the course of the robbery.
Additionally, Defendant Cook argues that there was insufficient proof that the victim
sustained serious bodily injury and insufficient proof that any property was taken from the
victim. The State responds that there is sufficient evidence upon which a jury could find
the defendants guilty beyond a reasonable doubt of aggravated robbery. We agree with
the State.
When an accused challenges the sufficiency of the evidence, this Court=s standard of review is whether, after
considering the evidence in the light most favorable to the State, Aany rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.@ Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn.
R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This standard applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.
App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct evidence, a
criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241
(Tenn. 1973). AThe jury decides the weight to be given to circumstantial evidence, and >[t]he inferences to be drawn
from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury.=@ State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable
v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). AThe standard of review [for sufficiency of the evidence] >is the same
whether the conviction is based upon direct or circumstantial evidence.=@ State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
In determining the sufficiency of the evidence, this Court should not re-weigh or reevaluate the evidence.
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for
those drawn by the trier of fact from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). AQuestions concerning the credibility of witnesses, the weight and value
to be given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact.@ State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). AA guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.@ State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978), superseded by statute on other grounds as stated in State v. Barone, 852
S.W.2d 216, 218 (Tenn.1993)) (quotations omitted). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury see the
witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the
trial judge and jury are the primary instrumentality of justice to determine the weight and credibility
to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and
the totality of the evidence cannot be reproduced with a written record in this Court.
8
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523, 527 (Tenn. 1963)). This
Court must afford the State of Tennessee the A>strongest legitimate view of the evidence=@ contained in the record, as
well as A>all reasonable and legitimate inferences=@ that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the
burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000) (citations omitted).
As relevant to this case, a conviction for aggravated robbery requires proof beyond a reasonable doubt that
the defendants committed an Aintentional or knowing theft of property from the person of another by violence or
putting the person in fear,@ accomplished with the use or display of a deadly weapon. T.C.A. '' 39-13-401(a),
-402(a)(1) (2014).
The evidence, considered in the light most favorable to the State, shows that the defendants observed the
victim walking down Macon Road alone at night. The defendants ran toward the victim causing him to flee and fall
on the pavement after being struck on the head. The victim was beaten, kicked, and hit on the back of the head with
the handle of a gun, causing a laceration. The defendants demanded money from the victim, who pointed to his rear
pocket where he had $200 and a T-Mobile cell phone. Both the cash and the cell phone were taken. When Mr.
Bartram, who had observed the beating and robbery, stepped out on his porch, the defendants fled to a nearby
residence. Inside the residence, the defendants showed other people the T-Mobile cell phone taken during the
robbery, and Mr. Washington confirmed that he could Aunlock@ the phone. Shortly thereafter, the police found both
defendants hiding in the garage of the residence and a loaded gun hidden inside a sock underneath the washing
machine near the entry to the garage. The defendants were taken into custody and provided statements to the
police. Both defendants admitted their presence during the beating and robbery. Defendant Broadnax denied use
of a gun but admitted he had a gun in his waistband at the time of these events. He further admitted that the victim=s
cell phone was taken. Defendant Cook Amentioned@ a silver revolver, and both the victim and Mr. Bartram testified
that a gun was used during the course of the robbery.
As to Defendant Cook=s contention that the State failed to show serious bodily injury, we note that the
State did not proceed under this element of the statute, but relied on proof of the use or display of a deadly weapon.
The evidence proves that the defendants took money and a cell phone from the victim while placing him in fear with
the use or display of a deadly weapon. Accordingly, we conclude that the proof is sufficient to support the
defendants convictions for aggravated robbery beyond a reasonable doubt. The defendants are not entitled to
relief as to this issue.
B. Jury Venire
Defendant Cook contends that the trial court should have struck the entire jury
9
venire during jury selection due to remarks made by an observer in the hallway outside
the courtroom during jury selection. The State responds that the trial court acted within
its discretion when it denied the motion. We agree with the State.
A potential juror notified the trial court that he had overheard Athe defendant=s
girlfriend@ say Ahe was guilty and somebody put him up to it.@ The potential juror
explained that he had returned from lunch early and was in the hallway when this
statement was made. He indicated that there were Amaybe five, six@ other people in the
hallway at the time. The woman who made this statement was later identified as
Defendant Broadnax=s ex-girlfriend, Della Mason. The trial court dismissed the potential
juror and then made a general inquiry of the jury venire regarding any comments
overheard in the hallway. The trial court then privately interviewed each of the potential
jurors who had overheard Ms. Mason=s comments in the hallway. Upon individual
questioning, each of the potential jurors conveyed that they had overheard Ms. Mason
make statements unrelated to the case. The trial court excluded Ms. Mason from the
court room.
The attorneys representing both defendants made a motion to strike the jury panel
based upon these statements. The trial court denied the motion, stating:
[T]he juror who was juror number four, b[r]ought this to our attention. We
excused him because he did hear some things that he felt impacted him.
I then questioned one, two, three, four, six, seven, ten other jurors
who indicated they heard this woman talking. All of them indicated she
was just talking loud and making noise and talking about the system and
different things. None of them indicated they heard anything about the
case, anything that would impact them about the case, even any discussion
about the case, so I=m satisfied that she didn=t do anything that would cause
me to dismiss this jury pool.
I have barred her from the floor. She=s not going to be up here
anymore. But I=m not going to dismiss this pool and start all over again.
So I=ll note your exceptions and we=ll go forward.
A defendant is entitled to a trial Aby an impartial jury,@ with the jurors Arender[ing]
their verdict based only upon the evidence introduced at trial, weighing the evidence in
light of their own experience and knowledge.@ U.S. Const. amend. VI; Tenn. Const. art.
I ' 9; State v. Adams, 405 S.W.3d 641, 650 (Tenn. 2013). AWhen a jury has been
subjected to either extraneous prejudicial information or an improper outside influence,
10
the validity of the verdict is questionable.@ Adams, 405 S.W.3d at 650.
[E]xtraneous prejudicial information is information in the form of either
fact or opinion that was not admitted into evidence but nevertheless bears
on a fact at issue in the case. An improper outside influence is any
unauthorized private communication, contact, or tampering directly or
indirectly, with a juror during a trial about the matter pending before the
jury.
Id. at 650-51 (internal citations and quotations omitted).
When a defendant challenges the validity of a verdict on the basis of a tainted jury,
he Amust produce admissible evidence to make an initial showing that the jury was
exposed to extraneous prejudicial information or subjected to an improper outside
influence.@ Id. at 651. If a defendant makes this showing, Aa rebuttable presumption of
prejudice arises and the burden shifts to the State to introduce admissible evidence to
explain the conduct or demonstrate that it was harmless.@ Id. (citing Walsh v. State, 166
S.W.3d 641, 647 (Tenn. 2005)). In determining whether the State has rebutted the
presumption of prejudice, the trial court should consider the following factors: (1) the
nature and content of the information or influence, including whether the content was
cumulative of other evidence adduced at trial; (2) the number of jurors exposed to the
information or influence; (3) the manner and timing of the exposure to the juror or jurors;
and (4) the weight of the evidence adduced at trial. Id. at 654 (footnote omitted). Our
Supreme Court has said that A[n]o single factor is dispositive. Instead, trial courts should
consider all of the factors in light of the ultimate inquiry - whether there exists a
reasonable possibility that the extraneous prejudicial information or improper outside
influence altered the verdict.@ Id.
Our review of this issue is de novo, with the trial court=s factual findings
accompanied by a presumption of correctness, but no such presumption is given to the
trial court=s conclusions of law. Id. at 656; Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).
Defendant Cook argues that the trial court erred in denying his motion because the
jury was exposed to extraneous prejudicial information. Defendant Cook, however, has
failed to make the threshold showing that the jurors were exposed to extraneous
prejudicial information that bore on a fact at issue in the case.
The trial court found that there was no proof that members of the jury venire had
overheard prejudicial information that bore on a fact at issue in the case. The trial court
11
individually questioned each of the jurors that had overheard Ms. Mason talking in the
hallway. Each of the jurors stated the content of what they had heard her say and none of
her comments related to the case. The trial court=s findings are supported by the
transcript of the questioning of the potential jurors.
Accordingly, Defendant Cook offered no proof that the jury was actually exposed
to prejudicial information, and he, thus, falls short of meeting his threshold burden on the
issue. Therefore, Defendant Clark is not entitled to relief as to this issue.
C. Closing Argument
Defendant Cook asserts that the State committed prosecutorial misconduct during
closing argument. Specifically, he argues that the State improperly misstated the facts
when it argued that Defendant Cook described the pistol used and that he admitted to
beating the victim. The State responds that the closing argument was not improper. We
agree with the State.
Defendant Cook challenges the following portion of the State=s argument:
Here=s your facts. They both participated. They both run to that
house and they=re found immediately after. They both describe the weapon
as a .38. They both are hiding adjacent to the room where the gun is
hidden and they both admit to beating the victim.
The defendants= attorneys requested a curative instruction, asserting that Sergeant Barber
never testified that Defendant ACook said anything about the gun@ or that Defendant Cook
was involved in beating the victim. The trial court instructed the jury that the arguments
from the attorneys were not to be considered as evidence. The defendants= attorneys then
requested a more specific curative instruction. The trial court declined, stating that the
testimony was that Defendant Cook said he had been Ain a fight with a Mexican@ and
Defendant Cook saw a silver .38 revolver.
The Tennessee Supreme Court Ahas long recognized that closing arguments are a
valuable privilege that should not be unduly restricted.@ Terry v. State, 46 S.W.3d 147,
156 (Tenn. 2001) (citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)).
AConsequently, attorneys are given greater leeway in arguing their positions before the
jury, and the trial court has significant discretion in controlling these arguments, to be
reversed only upon a showing of an abuse of that discretion.@ Terry, 46 S.W.3d at 156
(citing Sutton, 562 S.W.2d at 823); see Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).
This Court has explained that Aclosing arguments must be temperate, based upon the
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evidence introduced at trial, relevant to the issues being tried, and not otherwise improper
under the facts or law.@ See State v. Goltz, 111 S.W.3d 1, 5 (citing Coker v. State, 911
S.W.2d 357, 368 (Tenn. Crim. App. 1995)).
In Goltz, this Court found that within the closing argument, five general areas of
prosecutorial misconduct are recognized:
1. It is unprofessional conduct for the prosecutor intentionally to misstate
the evidence or mislead the jury as to the inferences it may draw.
2. It is unprofessional conduct for the prosecutor to express his [or her]
personal belief or opinion as to the truth or falsity of any testimony or
evidence or the guilt of the defendant. See State v. Thornton, 10 S.W.3d
229, 235 (Tenn. Crim. App. 1999); Lackey v. State, 578 S.W.2d 101, 107
(Tenn. Crim. App. 1978); Tenn.Code Of Prof=l Responsibility DR
7-106(c)(4).
3. The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury. See [State v.J Cauthern, 967 S.W.2d
[726,] 737 (Tenn. 1998); State v. Stephenson, 878 S.W.2d 530, 541 (Tenn.
1994).
4. The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence, by injecting issues broader
than the guilt or innocence of the accused under the controlling law, or by
making predictions of the consequences of the jury=s verdict. See
Cauthern, 967 S.W.2d at 737; State v. Keen, 926 S.W.2d 727, 736 (Tenn.
1994).
5. It is unprofessional conduct for a prosecutor to intentionally refer to or
argue facts outside the record unless the facts are matters of common public
knowledge.
Goltz, 111 S.W.3d at 6 (quoting Standards Relating to the Prosecution Function and the
Defense Function '' 5.8-5.9 Commentary (ABA Project on Standards for Criminal
Justice, Approved Draft 1971)). A criminal conviction, however, should not be lightly
overturned solely on the basis of the prosecutor=s closing argument. State v. Banks, 271
S.W.3d 90, 130 (Tenn. 2008) (citing United States v. Young, 470 U.S. 1, 11-13, (1985);
State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001) (holding that a prosecutor=s improper
closing argument does not automatically warrant reversal).
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Defendant Cook asserts that the State violated standards one and five of the ABA
Standards Relating to the Prosecution Function and the Defense Function. Our review of
the record does not show that the State misstated the facts or argued outside the record.
Sergeant Barber testified that Defendant Cook stated that once he had returned to the
residence at the corner of Macon Road and Wells Station he was asked why he was so
nervous, and he responded that he had just gotten in a fight with a AMexican.@ Sergeant
Barber also testified that, during the police interview, Defendant Cook described a .38
silver revolver.
Accordingly, we conclude that the State=s argument with regard to Defendant
Cook=s participation in the victim=s beating and his description of the weapon used during
the commission of this offense was not a misstatement of the facts or argument outside
the record. Therefore, Defendant Cook is not entitled to relief as to this issue.
D. Sentencing
Defendant Cook challenges the trial court=s application of three enhancement
factors in determining his sentence. Specifically, he asserts that the trial court
improperly applied: factor (2), that the victim was a leader in the offense; factor (6), that
the personal injuries inflicted upon the victim were particularly great; and factor (7) that
the offense was committed to gratify the defendant=s desire for pleasure or excitement.
The State responds that the trial court properly considered the enhancement and
mitigating factors and imposed a sentence consistent with the purposes and principles of
the Sentencing Act. We agree with the State.
The Tennessee Criminal Sentencing Reform Act of 1989 and its amendments
describe the process for determining the appropriate length of a defendant=s sentence.
Under the Act, a trial court may impose a sentence within the applicable range as long as
the imposed sentence is consistent with the Act=s purposes and principles. T.C.A. '
40-35-210(c)(2), (d) (2014); see State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).
In State v. Bise, the Tennessee Supreme Court announced that Asentences imposed by
the trial court within the appropriate statutory range are to be reviewed under an abuse of
discretion standard with a >presumption of reasonableness.=@ 380 S.W.3d 682, 708 (Tenn.
2012). A finding of abuse of discretion A>reflects that the trial court=s logic and reasoning
was improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.=@ State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting
State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record
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must be void of any substantial evidence that would support the trial court=s decision.
Shaffer, 45 S.W.3d at 555; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp,
614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The reviewing court should uphold the
sentence Aso long as it is within the appropriate range and the record demonstrates that the
sentence is otherwise in compliance with the purposes and principles listed by statute.@ Bise,
380 S.W.3d at 709-10. In other words, so long as the trial court sentences a defendant within
the appropriate range and properly applies the purposes and principles of the Sentencing Act,
its decision will be granted a presumption of reasonableness. Id. at 707.
At the sentencing hearing, the trial court properly considered the purposes of
sentencing in Tennessee Code Annotated section 40-35-102 and the factors set out in
Tennessee Code Annotated section 40-35-210. The trial court noted that Defendant
Cook had several prior convictions including aggravated burglary, domestic violence,
failure to appear, possession of marijuana, criminal impersonation, burglary of an
automobile, robbery, and theft of property. In considering enhancement and mitigating
factors, the trial court found enhancement factor (2) applicable, that Defendant Cook was
a leader in the offense. T.C.A. ' 40-35-114(2). Next, the trial court found enhancement
factor (6) applicable, that the personal injuries inflicted upon the victim were particularly
great, but stated AI just do not have enough proof in front of me to say that I can put a
great deal of emphasis and weight on the injuries to his eye.@ As to factor (7) that the
offense was committed to gratify the defendant=s desire for pleasure or excitement, the
trial court stated:
I find that they treated the victim with exceptional cruelty above and beyond
what was necessary to rob him. Again because I do not think that was their
full goal. I think [ ] part of their goal was to rob him. And but I think part
of it was just to gratify their desire for pleasure or excitement and to beat
somebody up and to beat them up unmercifully just for the sheer fun of it.
And to the extent I think it=s well beyond what was necessary to rob him
and, therefore, I do think that the victim was allowed to be treated with
exceptional cruelty during the commission of this offense including the
final blow where he was kicked in the testicles as they were departing.
The trial court also stated that, based upon Defendant Cook=s statement to the police that
he was having a bad day, Alet=s just go pick somebody out randomly and beat them up,@ it
appeared Defendant Cook committed this crime Ato gratify [his] desire for a little pleasure
and excitement.@ The trial court found no mitigating factors applicable. The trial court
stated that it put a Agreat deal of weight@ on Defendant Cook=s previous history of
criminal convictions and criminal behavior. The sentencing range for this offense is
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twelve to twenty years and the trial court imposed a sentence of nineteen years.
The record shows that the trial court complied with the purposes and principles of
the Sentencing Act, considered the enhancement and mitigating factors, and sentenced
Defendant Cook within the appropriate range. Accordingly, Defendant Cook is not
entitled to relief.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
trial court=s judgments.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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