State v. Shawn R. Cotton ( 1999 )


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  •              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    JULY 1999 SESSION              FILED
    September 10, 1999
    STATE OF TENNESSEE,          )
    )                        Cecil Crowson, Jr.
    Appellee,       )                       Appellate Court Clerk
    No. 01C01-9805-CR-00209
    )
    )    Davidson County
    v.                           )
    )    Honorable Frank G. Clement, Jr., Judge
    )
    SHAWN ROBERT COTTON          )    (Vehicular homicide by intoxication)
    )
    Appellant.      )
    For the Appellant:                For the Appellee:
    Robert P. Ballinger               Paul G. Summers
    601 Woodland Street               Attorney General of Tennessee
    Nashville, TN 37206                      and
    (AT TRIAL AND ON APPEAL)          Daryl J. Brand
    Assistant Attorney General of Tennessee
    450 James Robertson Parkway
    John G. Oliva                     Nashville, TN 37243-0493
    601 Woodland Street
    Nashville, TN 37206               Victor S. Johnson, III
    (ON APPEAL)                       District Attorney General
    and
    Bernie McEvoy
    Assistant District Attorney General
    Washington Square, Suite 500
    222 2nd Avenue North
    Nashville, TN 37201-1649
    OPINION FILED:____________________
    AFFIRMED
    Joseph M. Tipton
    Judge
    OPINION
    The defendant, Shawn Robert Cotton, appeals as of right his conviction
    by a jury in the Davidson County Criminal Court for vehicular homicide by intoxication, a
    Class B felony. The trial court sentenced the defendant to serve twelve years in the
    Department of Correction as a Range I, standard offender. The defendant contends
    that:
    (1) the evidence is insufficient to support the conviction,
    (2) the trial court erred during voir dire by impliedly threatening
    to hold the jurors in contempt for perjury if they failed to return
    a verdict,
    (3) the state improperly struck African-American female jurors
    from the panel based upon their race and gender,
    (4) the state improperly commented upon the defendant’s
    silence and improperly appealed to the jury’s sympathy during
    argument, and
    (5) the cumulative effect of the errors violates the defendant’s
    right to a fair trial.
    We affirm the trial court’s judgment of conviction.
    Detective Rickey Ollis testified that on April 2, 1996, at 3:15 a.m., he was
    responding to another dispatch when he heard tires screech and a crash. He said that
    in less than thirty seconds, he came upon a red Camaro embedded in an embankment
    across from a “T” intersection. He stated that on the driver’s side, he saw an
    unconscious male seated behind the steering wheel. He said the man had long, dark
    hair and was of average build. He identified this man as the defendant. He said he
    saw a female slumped down in the passenger seat with her chin on her chest. He said
    her feet were bent underneath the passenger’s bucket seat, and her back was against
    the bottom of the seat as if she were sliding out of it. He stated that the driver’s door
    was jammed, and he tapped on the driver’s window two or three times until the
    defendant started to move. He said the passenger’s door was also jammed, but he
    could see the passenger’s chest rising and falling. He stated that he radioed for an
    2
    ambulance and an extrication unit. He said that he then saw a third person rise up in
    the back seat.
    Detective Ollis testified that the fire department arrived within five minutes
    and that he directed them to the passenger’s side, believing the female had the most
    serious injuries. He said that once they cut and pried the passenger’s door open, the
    defendant immediately crawled out over the female. He said that a large gear shift
    separated the car’s bucket seats. He said that considering the distance between the
    seats and the dashboard, it would not have been possible for two adults to change
    places in the car during the accident.
    Metro Police Officer Donald Davidson testified that he went to the
    accident scene. He said that the front of the 1968 red Camaro was compacted but that
    the damage did not extend through to the passenger’s compartment. He said the
    occupants were still inside the car when he arrived, and he saw a male with shoulder-
    length hair in the driver’s seat. He said that the man, whom he identified as the
    defendant, was looking around. He said he saw an unconscious female in the
    passenger’s seat with her body mostly down on the floorboard. He said this woman
    was eventually identified as the victim, Helen Hollis.
    Officer Davidson testified that he asked the defendant what happened
    and that the defendant told him that he thought the police were chasing them. He said
    the defendant appeared dazed. He said he went to the passenger’s side a few
    seconds before the door was pried open. He said the defendant crawled over the
    victim and out the passenger’s door. He said the backseat passenger, who was later
    identified as Chad Jumps, crawled between the seats, over the victim and out the
    passenger’s door.
    3
    Officer Davidson testified that he led the defendant away from the car,
    observed that the defendant’s eyes were red, and noticed the odor of alcohol on the
    defendant’s breath. He said that he asked the defendant what happened, and the
    defendant first responded that the victim was driving. He said the defendant admitted
    that he had been drinking, stated that the victim was driving, and said that a car pulled
    out in front of them. Officer Davidson said that when he told the defendant that he saw
    the defendant in the driver’s seat, the defendant said that the defendant had made a
    mistake, that he meant to say that he was driving, and that he was trying to help the
    victim because she had been drinking that night. Officer Davidson said that he
    explained the implied consent law to the defendant and requested that the defendant
    submit to a blood alcohol test. He said the defendant replied, “I’ll give you any f***ing
    thing you want because I wasn’t driving.”
    Officer Davidson testified that about three hours after the wreck, he
    arrested the defendant and advised him of his Miranda rights. He said that the
    defendant nodded his head to indicate that he did understand his rights. He said he
    then asked if the defendant could tell him what happened, and the defendant shook his
    head to indicate “no.” Officer Davidson said that he again asked the defendant if he
    could tell them who was driving or what happened, and the defendant again shook his
    head to indicate “no.”
    Officer Davidson testified that the inside of the car was damaged from the
    occupants striking the dashboard and that the glove box was heavily dented in the area
    of the victim’s knees. He admitted that the dents in the glove box did not reveal the
    identity of the passenger. He stated that the cracks that extended across the car’s
    windshield resulted from the front of the car compacting upon impact and were not
    consistent with a person’s head striking the windshield. He said that the steering wheel
    was bent from impact with an occupant. He stated that based upon the physical
    4
    evidence, the car hit the embankment straight on and that nothing indicated that the car
    had spun or rolled.
    Sandra Fielder, an emergency room nurse, testified that she treated the
    defendant on April 2, 1996. She said that the defendant had two lacerations on his chin
    and abrasions on his left hand and right elbow. She said that she did not see any
    injuries to his chest. She stated that he smelled strongly of alcohol. She said that he
    initially refused to submit to a blood alcohol test, claiming that he did not like needles.
    She said that she laughed because the defendant’s chest was covered with blue
    tattoos, and she told him she thought that he could stand the test if he had been able to
    stand the tattoos. She said that the defendant later agreed to the test. She said that
    her notes from that day indicate that the defendant denied being the driver of the car.
    Officer David Kitchens testified that he worked in the accident
    investigation division of the Metro Police Department. He said that he was called to an
    accident scene after 3:15 a.m. on April 2, 1996. He said that he saw a female in the
    passenger’s seat with her feet tucked underneath her. He said that the defendant had
    just left the car and that the odor of alcohol from the defendant’s mouth was obvious to
    extreme. He said that he saw no evidence that the car had flipped or spun. He said
    the damage to the steering wheel stood out in his mind.
    Officer Kitchens testified that he followed the defendant to the hospital
    where the defendant was loud, boisterous, profane and refused to stay on the bed. He
    said he read the implied consent law to the defendant again and asked him to submit to
    a blood alcohol test. He said that the defendant refused the test. He said he informed
    the defendant that the officers would force him to submit to the test, and the defendant
    agreed to the test after speaking with another officer. He said that while at the hospital
    5
    with the defendant, he saw a red, half-moon shaped mark across the defendant’s
    chest.
    Metro Police Officer Jim Reed testified that he was at the hospital with the
    defendant when the defendant refused to submit to a blood alcohol test because he
    was afraid of needles. He said that he told the defendant that his fear of needles was
    illogical given the fact that the defendant was covered with tattoos. He said that he
    noticed an obvious reddish, semi-circular mark on the defendant’s chest similar to a
    mark that would be left upon colliding with a steering wheel.
    Special Agent John Harrison of the Tennessee Bureau of Investigation
    (TBI) testified that he worked as a toxicologist at the state crime laboratory. He said
    that the defendant’s blood sample revealed a blood alcohol content of .17 percent.
    Dr. Bruce Levy, the Davidson County Medical Examiner, testified as an
    expert in forensic pathology. He said that he had reviewed the autopsy report on the
    victim. He said that the report revealed that she suffered a broken jaw; chin
    lacerations; a broken neck; a crushed larynx and trachea; multiple broken ribs; tears in
    her liver; a broken spine; a broken right arm; two broken ankles; bruising to her knees,
    the front of her legs, and the right side of her chest; and bleeding on the back of her
    scalp. He said that she died as a result of the blunt force injuries that she received in
    the accident. He said that the injuries were consistent with her sitting in the
    passenger’s seat of a car involved in a front end collision. He said that while it would be
    possible for her to have received the injuries while in the driver’s seat, her most serious
    injuries were to her head and neck; whereas, had she been behind the steering wheel,
    the most serious injuries would have been to the chest area. He noted that she did not
    have a steering wheel imprint.
    6
    Joe Farmer testified that on April 2, 1996, he was working for Browning-
    Ferris Industries relocating dumpsters from 1 a.m. to 1 p.m. He said that he likes cars
    and that between 2:40 and 2:50 a.m., he noticed a red Camaro across from him at an
    intersection. He said that an attractive, dark-haired young woman was driving, and she
    had two male passengers. Although he admitted that his truck sits very high up from
    the ground, he said that he was positive about the gender of the driver. He said that
    later that morning, another driver told him about an accident involving a red Camaro, in
    which a young woman was killed.
    Chad Jumps testified that he is an acquaintance of the defendant. He
    said that in early April 1996, he was in Tennessee helping the defendant move back to
    Illinois. He said that he and the defendant went to a bar and spoke with the bartender,
    who offered to show them another night spot called the Mix Factory when her shift
    ended. He said that he thought the bartender’s name was Christina Hollis. He said
    that she drove them to the Mix Factory, and they stayed until it closed around 3:00 a.m.
    He stated that when they left the Mix Factory, Ms. Hollis drove, the defendant sat in the
    passenger’s seat, and he sat in the backseat behind the defendant. He said they
    stopped at a gas station and bought a twelve pack of beer. He said that Ms. Hollis was
    driving when they left the gas station and that he does not remember anything from
    then until he awoke in the hospital about eight hours later.
    Dr. Charles Harlan testified that he previously served as the chief medical
    examiner for the state of Tennessee, and in addition to his private practice, he currently
    served on a contract basis as the county medical examiner for seven counties in middle
    Tennessee. He stated that he reviewed the victim’s medical records, including the
    autopsy report and photographs of the damage to the car, and he concluded that the
    victim was driving the car at the time of the accident. He stated that the victim’s broken
    ankles were consistent with the victim bracing her feet against the brake pedal, the
    7
    accelerator pedal, or the floorboard of the car. He said that her liver injuries could have
    been caused by impact with the bottom of the steering wheel. He said that her broken
    ribs were consistent with her chest hitting the sides of the steering wheel. He stated
    that her broken arm could have resulted from gripping or bracing against the steering
    wheel or dashboard at the time of impact. He said that he believed her neck injuries
    were caused by the impact with the dashboard over the steering wheel. He admitted
    that the injuries to the victim’s neck could have been caused by striking the dashboard
    on either side of the car, but he said that the victim’s injuries were caused by multiple
    points of impact. He stated that if the victim were in the passenger’s seat when the
    accident occurred, sufficient points of impact would not have been present to explain all
    of her injuries.
    Dr. Harlan testified that he had also reviewed the defendant’s emergency
    room records and Metro Fire Department EMS records from the time of the accident.
    He stated that the EMS records note that the defendant had negative trauma to his
    chest. He said that the emergency room records reveal that the doctor noted no
    bruising on the defendant’s chest in an office visit two days after the accident. He
    concluded that if the defendant had exhibited a red semi-circle on his chest on April 2,
    this injury would have also been apparent two days later. He noted that the defendant
    had pooling of blood and abrasions in the knee area. He stated that the defendant’s
    injuries were not consistent with him being the driver.
    Based upon the foregoing evidence, the jury found the defendant guilty of
    vehicular homicide by intoxication and vehicular homicide by reckless endangerment.
    The trial court merged the two convictions into the vehicular homicide by intoxication
    count because the charges stemmed from a single death.
    8
    I. SUFFICIENCY OF THE EVIDENCE
    The defendant contends that the evidence is insufficient to prove beyond
    a reasonable doubt that he was driving the car at the time of the accident. He argues
    that because Dr. Harlan concluded that the victim was the driver based upon her
    injuries and because Joe Farmer saw the victim driving the car shortly before the
    accident, the state has failed to disprove all reasonable alternatives to the
    circumstantial evidence placing him in the driver’s seat. The state contends that the
    evidence is sufficient.
    Our standard of review when the sufficiency of the evidence is questioned
    on appeal is "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." Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789 (1979). This means that we may not reweigh the evidence, but must
    presume that the jury has resolved all conflicts in the testimony and drawn all
    reasonable inferences from the evidence in favor of the state. See State v. Sheffield,
    
    676 S.W.2d 542
    , 547 (Tenn. 1984); State v. Cabbage, 
    571 S.W.2d 832
    , 835 (Tenn.
    1978). For circumstantial evidence to provide the sole basis for the conviction, the facts
    must be “so closely interwoven and connected that the finger of guilt is pointed
    unerringly at the defendant and the defendant alone.” State v. Crawford, 
    225 Tenn. 478
    , 484, 
    470 S.W.2d 610
    , 613 (1971). The evidence must be both consistent with the
    defendant’s guilt and inconsistent with the defendant’s innocence, exclude all other
    reasonable theories except that of guilt, and establish the defendant’s guilt so as to
    convince the mind beyond a reasonable doubt that he or she committed the crime.
    Patterson v. State, 
    4 Tenn. Crim. App. 657
    , 661, 
    475 S.W.2d 201
    , 203 (1971).
    Whether other reasonable inferences are excluded by the circumstantial evidence is
    also a question for the jury.
    9
    Tenn. Code Ann. § 39-13-213(a)(2) defines vehicular homicide as “the
    reckless killing of another by the operation of an automobile, . . . [a]s the proximate
    result of the driver’s intoxication as set forth in § 55-10-401.” Viewing the evidence in
    the light most favorable to the state, Dr. Levy testified that the victim died as a result of
    the injuries she sustained in the accident. Special Agent Harrison testified that the
    defendant’s blood alcohol content was .17 percent on the morning of the accident.
    Based upon this percentage, the defendant is presumed to be under the influence of an
    intoxicant and his ability to drive thereby impaired. See Tenn. Code Ann. § 55-10-
    408(b).
    The circumstantial evidence points to the defendant as the driver of the
    Camaro at the time of the accident. Officer Ollis testified that he found the defendant
    unconscious in the driver’s seat thirty seconds after he heard the crash. Officers Ollis,
    Davidson and Kitchens all testified that the victim was on the passenger’s side with her
    feet bent beneath her seat. Officers Kitchens and Reed reported seeing a red semi-
    circular mark on the defendant’s chest shortly after the accident. Testimony and
    photographs introduced at the trial revealed that the Camaro had bucket seats
    separated by a tall gear shift. Both Officers Davidson and Kitchens found no evidence
    that the car had spun or rolled. Dr. Levy and Dr. Harlan both admitted that the victim’s
    injuries could have been sustained in either the driver’s seat or the passenger’s seat,
    with each providing a different explanation of how the victim’s injuries indicated a
    particular position. The jury obviously accredited the explanation provided by Dr. Levy.
    Although Mr. Farmer testified that he saw a woman driving the Camaro between 2:40
    and 2:50 p.m., he did not know who was driving the car at the time of the accident
    about twenty-five minutes later. Furthermore, Mr. Farmer or any other witness failed to
    give any reasonable explanation of how the defendant came to be located in the
    driver’s seat thirty seconds after the accident occurred. Thus, the evidence taken in the
    10
    light most favorable to the state excludes all reasonable theories except that of the
    defendant as the driver.
    II. TRIAL COURT’S STATEMENT TO THE JURY VENIRE
    The defendant contends that the trial court committed reversible error
    when it told the jurors during voir dire that they would be held in contempt for perjury if
    they failed to return a verdict consistent with the trial court’s instruction on the law. The
    defendant admits that he failed to object contemporaneously to the trial court’s
    statement. However, he asks that we find plain error because the trial court’s statement
    prejudiced the judicial process, thereby requiring a new trial even if the misconduct did
    not influence the verdict. See State v. Perry, 
    740 S.W.2d 723
    , 726 (Tenn. Crim. App.
    1987) (holding that prejudice to the judicial process resulting from a juror’s exposure to
    extraneous information required a new trial even though the error probably had no
    effect on the trial’s outcome); Tenn. R. Crim. P. 52(b).
    The statement in question came during the trial court’s explanation of the
    purpose of voir dire to the jury pool. The trial court told the potential jurors that they
    need not disregard their individual life experiences and their common sense when
    deliberating. The trial court then stated as follows:
    It is important however, that your life experiences and
    your beliefs not interfere with your responsibilities.
    The most important thing that I may say today is that for
    you to be a juror, you must be able to be fair, impartial, and
    unbiased; fair, impartial, and unbiased. And the reason I say
    that is, think of it this way: If you knew of someone who had a
    matter that needed to go to court and needed to be ruled upon
    by jurors, wouldn’t it be terribly unfair if one or more members
    of the jury had their minds made up before they ever heard the
    evidence, before they ever heard a witness testify, and before
    they ever heard what the law was? That wouldn’t be fair. And
    you don’t want to be in that position and I sure don’t.
    And I promise you, if you serve on the jury, and this
    case may take two or three days to try. If you serve on the
    jury, this jury, and if during those deliberations, two or three
    11
    days later you say, I’m sorry, I just can’t apply the law that
    Judge Clement read to us, I’ve just got real strong feelings
    about this and I don’t care what the law is, this is the way I see
    it and I’m going to rule this way. W ell, you will have wasted
    everybody’s time. You will have offended at least [eleven]
    people in the jury room. And I may hold you in contempt for
    having committed perjury. So don’t put yourself or the others
    in that position.
    Be honest with yourself, be honest with me, be honest
    with your fellow jurors when we ask you if you have life
    experiences or if you have opinions on the subject. Just share
    it with us. It’s best to get it out early.
    And what can I do, I’ll visit with you and say, well, can
    you put that aside and make a decision based solely upon
    what the witness testified to and what the law is? And if you
    can answer that in good faith, then you’ll be a great juror.
    And if you say, I’m sorry, but my belief on this issue, or
    my life experience was so personal and so heartfelt that I just
    can’t put that aside. And then what I’ll say is, thank you very
    much for your honesty, you’ve done what you should do. I
    would excuse you not from the whole jury panel but just from
    this case, because it may be this type of case might not be the
    best case for you.
    The defendant challenges the underlined portion.
    "The ultimate goal of voir dire is to insure that jurors are competent,
    unbiased and impartial, and the decision of how to conduct voir dire of prospective
    jurors rests within the discretion of the trial court." State v. Stephenson, 
    878 S.W.2d 530
    , 540 (Tenn. 1994). Rule 24(f), Tenn. R. Crim. P., directs that the trial court “give
    the prospective jurors appropriate admonitions regarding their conduct during the
    selection process.” The trial court’s statement, when viewed in the context of the
    court’s explanation of the potential jurors’ responsibilities, was merely an admonition to
    the potential jurors to respond truthfully during voir dire. Given this context, we do not
    believe it to be clear error that adversely affected a substantial right of the defendant as
    is required for a determination of plain error. See State v. Adkisson, 
    899 S.W.2d 626
    ,
    641-42 (Tenn. Crim. App. 1994).
    III. BATSON CHALLENGE
    12
    The defendant contends that the state used its peremptory challenges to
    strike African-American females from the jury on the basis of their race and gender in
    violation of Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
     (1986). He argues that
    the state’s alleged reason for striking these potential jurors was pretextual. The state
    contends that the trial court properly determined that the state challenged these
    potential jurors based upon a valid, race-neutral reason.
    The state questioned the jury panel about their views on circumstantial
    evidence using several hypothetical scenarios. Ms. Cage said that she would not want
    to find the defendant guilty if the evidence against him were circumstantial. Ms. Lee did
    not believe the circumstantial evidence in the prosecutor’s hypothetical was good strong
    evidence and even stated that the prosecutor had provided no evidence in his
    hypothetical. Ms. Taylor stated that she wanted more proof beyond the circumstantial
    evidence presented in the hypothetical. In response to a hypothetical burglary with a
    questionable eyewitness naming one perpetrator and circumstantial evidence pointing
    to a second perpetrator, Ms. Akins said that she was not sure which individual was the
    perpetrator. The prosecutor asked for a show of hands from the jury panel of those
    who thought the circumstantial evidence in his hypothetical was good strong evidence.
    Subsequent questioning reveals that Ms. Lee and Ms. Cage did not raise their hands,
    but the record does not reveal whether Ms. Taylor or Ms. Akins raised their hands.
    The trial court denied the state’s motion to strike Ms. Cage for cause,
    noting that although it was a close issue, she had not received the jury charge defining
    direct and circumstantial evidence. The state then used its peremptory challenges to
    strike Ms. Cage, Ms. Lee, Ms. Taylor, and Ms. Akins. The defendant objected, and the
    trial court held a hearing in chambers. The state noted that although it had struck four
    African-American women, three of the four replacements were African-American
    women. The state said that it struck the women because they did not like
    13
    circumstantial evidence. The trial court found that the record fully supported the state’s
    reason, noting that the responses of the stricken jurors indicated that they “did not
    much care for circumstantial evidence, to say the very least.”
    In Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
     (1986), the United
    States Supreme Court held that a state’s use of peremptory challenges to exclude
    intentionally jurors of the defendant’s race violates the defendant’s Fourteenth
    Amendment right to equal protection. The Court upheld this principle in Powers v.
    Ohio, 
    499 U.S. 400
    , 
    111 S. Ct. 1364
     (1991), but eliminated the requirement that the
    defendant and the potential juror share the same race. The Court held that race was
    “irrelevant to a defendant’s standing to object to the discriminatory use of peremptory
    challenges.” Id. at 416, 111 S. Ct. at 1373. The Court subsequently held that
    peremptory strikes based solely on gender are also constitutionally impermissible.
    J.E.B. v. Alabama ex. rel T.B., 
    511 U.S. 127
    , 140, 
    114 S. Ct. 1419
    , 1427-28 (1994); see
    State v. Turner, 
    879 S.W.2d 819
    , 821-23 (Tenn. 1994).
    A defendant seeking to raise a Batson claim has the initial burden of
    making a prima facie showing of purposeful discrimination against a prospective juror.
    Batson 476 U.S. at 93-94, 106 S. Ct. at 1721; State v. Ellison, 
    841 S.W.2d 824
    , 826
    (Tenn. 1992). Our supreme court has held that in order to establish a prima facie case,
    a defendant “must establish that a consideration of all the relevant circumstances raises
    an inference of purposeful discrimination.” Woodson v. Porter Brown Limestone Co.,
    
    916 S.W.2d 896
    , 902-03 (Tenn. 1996). Once the defendant establishes a prima facie
    showing of purposeful discrimination, the burden shifts to the state to articulate a race-
    neutral reason for the challenge. Batson, 476 U.S. at 97, 106 S. Ct. at 1723. The
    state’s explanation “must be based on more than stereotypical assumptions, but it need
    not rise to the level required to justify the exercise of a challenge for cause.” Ellison,
    841 S.W.2d at 826; Batson, 476 U.S. at 97, 106 S. Ct. at 1723.
    14
    In ruling on an objection to the discriminatory use of a peremptory
    challenge, the trial court must articulate specific reasons for each of its factual findings.
    Woodson, 916 S.W.2d at 906. First, the court should explain why the objecting party
    has or has not established a prima facie showing of purposeful discrimination. Then, if
    the defendant has made a prima facie showing, the court must determine whether the
    state gave a race-neutral explanation for the challenge and whether it finds, based on
    the totality of the circumstances, that the challenge was the result of purposeful
    discrimination. Id. “The trial court’s factual findings are imperative in this context. On
    appeal, the trial court’s findings are to be accorded great deference and not set aside
    unless clearly erroneous.” Id.
    In this case, the trial court did not explicitly state whether the defendant
    made a prima facie showing of discrimination. In Woodson, our supreme court
    concluded that the trial court had found that the objecting party made a prima facie
    showing of purposeful discrimination, reasoning that if the objecting party had not made
    a prima facie showing, the trial court would not have required an explanation for the
    challenge. Id. at 905. In any event, the trial court in the present case concluded that
    the state’s reason for challenging the prospective jurors was not discriminatory. The
    defendant claims that the trial court only found that the state’s challenges were not
    discriminatory with regard to race but made no finding concerning gender. We note
    that the trial court stated that peremptory challenges could not be used to discriminate
    on the basis of race or gender. Although the court did point out that the state did not
    strike the African-Americans who replaced the potential jurors in question, we believe
    the record reveals that the trial court’s finding of no discrimination applies to both race
    and gender. The court accredited the prosecutor’s response that he challenged the
    jurors based upon their lack of confidence in circumstantial evidence.
    15
    The defendant contends that the state’s reason was pretextual because
    many jurors who were not stricken expressed similar reservations about circumstantial
    evidence. The defendant downplays the four women’s distrust of circumstantial
    evidence. Ms. Lee and Ms. Cage could not accept that circumstantial evidence could
    be good evidence. Ms. Taylor stated that she would need proof beyond circumstantial
    evidence. Ms. Akins declined to choose circumstantial evidence over questionable
    direct evidence. Although some potential jurors indicated that they would have to
    carefully weigh the circumstantial evidence, the remaining members of the venire
    indicated that circumstantial evidence could be good evidence. The one remaining
    potential juror who stated that direct evidence was better than circumstantial evidence
    also said that he could believe circumstantial evidence. Based upon a careful
    examination of the record before us, we cannot say that the trial court’s finding is clearly
    erroneous.
    IV. IMPROPER ARGUMENT
    The defendant contends that the state improperly commented upon the
    defendant’s silence during its opening statement, its case-in-chief and its closing
    argument. The defendant also argues that the state improperly appealed to the jury’s
    sympathy during closing argument. The state contends that the defendant
    mischaracterizes the prosecutor’s analysis of the evidence as commenting upon the
    defendant’s silence. The state also asserts that even if the prosecutor’s reference to
    the victim’s family could be considered a victim impact argument, it is harmless error at
    most.
    The state initially contends that the defendant has waived these issues by
    failing to object contemporaneously or to raise the issues in his motion for a new trial.
    The defendant argues that because his right against self-incrimination under the Fifth
    Amendment is a fundamental right, the failure to make a contemporaneous objection
    16
    does not bar this court’s consideration of the issue of whether the state improperly
    commented upon the defendant’s silence. With regard to the prosecutor’s alleged
    appeal to the jury’s sympathy, the defendant contends that the trial court has a duty to
    insure sua sponte that closing arguments are appropriate, and the improper argument
    constitutes plain error. Failure to object contemporaneously to improper argument
    constitutes a waiver pursuant to Rule 36(a), T.R.A.P. Furthermore, errors related to the
    misconduct of counsel must be presented in the motion for a new trial to be preserved
    for our review. T.R.A.P. 3(e). This court has previously held that the issue of whether
    the state improperly commented upon a defendant’s failure to testify was waived when
    it was not included in the motion for a new trial. State v. Hix, 
    696 S.W.2d 22
    , 26 (Tenn.
    Crim. App. 1984). Thus, we will review these issues to determine if plain error exists.
    See Tenn. R. Crim. P. 52(b).
    A. COMMENTS UPON THE DEFENDANT’S SILENCE
    The defendant cites four points in the record in which he characterizes the
    prosecutor’s remarks or the testimony solicited as a comment upon the defendant’s
    refusal to answer questions from the investigating officer after the Miranda warnings
    were given. When a defendant elects not to testify at trial, a prosecutor may not
    comment upon the defendant’s failure to make a statement to the police because this
    would punish the defendant for exercising his or her constitutional right to remain silent.
    Braden v. State, 
    534 S.W.2d 657
    , 659-60 (Tenn. 1976). The United States Supreme
    Court has held that it is “impermissible to penalize an individual for exercising his Fifth
    Amendment privilege when he is under police custodial interrogation. The prosecution
    may not, therefore, use at trial the fact that [a defendant] stood mute or claimed his
    privilege in the face of accusation.” Miranda v. Arizona, 
    384 U.S. 436
    , 468, 
    86 S. Ct. 1602
    , 1625 (1966). A prosecutor may comment upon the defendant’s veracity when
    the comment is supported by evidence in the record. State v. West, 
    767 S.W.2d 387
    ,
    394 (Tenn. 1989); State v. Beasley, 
    536 S.W.2d 328
    , 330 (Tenn. 1976).
    17
    The defendant asserts that the prosecutor commented upon the
    defendant’s silence when the prosecutor related in the opening statement that the
    defendant admitted driving but did not know how the accident occurred:
    During the course of the evening, police officers spoke
    to the defendant a number of times. And each time, he told
    them a very, very different story. The first time officers spoke
    to the defendant at the scene, the defendant said, police were
    chasing us, we were running from the police and crashed.
    That wasn’t true.
    He spoke with the police a second time, he said a car
    pulled out in front of us, and he pulled out of a gas station, it
    ran us off the road. That wasn’t true.
    He spoke to the police a third time, he said yes, [I] have
    been drinking, but it doesn’t matter, I wasn’t driving. She was
    driving. Helen Hollis was driving. That wasn’t true.
    Finally, the defendant told the truth. He said to the
    officers, he was driving. He said, he didn’t remember how the
    crash occurred. That’s what happened.
    The defendant claims the underlined section is a comment on his silence. We do not
    view the statement that the defendant admitted driving to relate to the defendant’s
    failure to give a statement to the police. Instead, the prosecutor simply pointed out to
    the jury which of defendant’s statements to the police should be believed. This portion
    of the statement was proper.
    The reference to the defendant not remembering how the crash occurred
    relates to the responses that the defendant gave Officer Davidson after the officer
    advised the defendant of his Miranda rights. The defendant also challenges this portion
    of Officer Davidson’s testimony, which was as follows:
    PROSECUTOR: [About three hours after the wreck,]
    you once again questioned the defendant about the collision?
    DAVIDSON: Yes sir. At that time, I advised him of his
    constitutional rights and I asked him if he could tell me what
    happened--well, I asked him, did he understand his rights? He
    shook his head, yes, that he did.
    I asked him, could he tell me what happened in the
    collision? He shook his head, no. I said, can you tell me who
    18
    was driving or what happened? And he again, shook his head,
    no.
    The defendant characterizes the negative head shake as a refusal to make a
    statement. The state contends that the defendant’s responses were not a refusal to
    answer but rather were voluntary answers to the officer’s questions made after the
    defendant had been informed of his constitutional rights and had indicated that he
    understood those rights. When a defendant voluntarily makes a statement after being
    informed of his or her constitutional rights, the state may comment upon the scope of
    that statement. See Ware v. State, 
    565 S.W.2d 906
    , 908 (Tenn. Crim. App. 1978). It is
    unclear whether the defendant’s responses to Officer Davidson’s questions constituted
    answers to those questions or a refusal to answer. In any event, even if the responses
    were a refusal to make a statement, thereby making Officer Davidson’s testimony and
    the prosecutor’s reference to that testimony comments upon the defendant’s silence,
    we believe this error to be harmless beyond a reasonable doubt in light of the remaining
    evidence supporting the defendant’s guilt.
    The defendant also contends that the following statement made by the
    state during its closing argument constitutes a comment upon the defendant’s silence:
    Has the defense given you any reasonable explanation
    [about] how the defendant ended up in the driver’s seat and
    Helen Hollis ended up in the passenger’s seat seconds after
    a viable, (sic) high impact front-end collision? They haven’t.
    This court has held that comments indicating that the state’s proof remains
    uncontradicted do not implicate the defendant’s choice not to testify. Thompson v.
    State, 
    958 S.W.2d 156
    , 168 (Tenn. Crim. App. 1997) (reviewing the failure to object to
    the state’s argument that the defendant had offered no defense to the crime); State v.
    Thomas, 
    818 S.W.2d 350
    , 364 (Tenn. Crim. App. 1991) (analyzing the state’s comment
    that “there’s no other reasonable explanation, none given”); State v. Blackmon, 
    701 S.W.2d 228
    , 233 (Tenn. Crim. App. 1985) (analyzing the state’s argument that the
    defendant had offered no “excuse or justification” for his escape); State v. Coury, 697
    
    19 S.W.2d 373
    , 378 (Tenn. Crim. App. 1985). The state’s argument that the defendant
    failed to explain his and the victim’s positions immediately after the accident is of this
    nature. It was proper argument.
    Finally, the defendant asserts that the state commented upon his silence
    during its rebuttal argument by referring to his lack of remorse:
    The medical personnel finally get there. They have to
    use the jaws of life to pry the car open. What is the first thing
    Shawn Cotton does? Is he wondering how this person here
    [that] is just barely hanging on to her life [is] doing? Does he
    see if she needs help? No. He climbs from the driver’s seat
    over her body to the passenger’s seat to get out. No remorse
    whatsoever for a person laying next to him dying.
    ....
    Let’s talk about the defendant on April 2, 1996. We do
    know that from the get-go there was one statement, he denied
    driving. We do know that he asked numerous times about his
    car. He was very upset that his car was totaled out. Did we
    hear any statements that he made concerning the welfare of
    the passengers in the car? Nothing. All we heard [were] his
    concerns about his car trying to shift the burden . . . away from
    himself.
    The state contends that these were comments about the defendant’s demeanor and
    conduct shortly after the accident, and they are relevant to the defendant’s intoxication,
    an element of the crime. A prosecutor may properly base his or her argument upon
    inferences supported by evidence in the record. See State v. Brown, 
    836 S.W.2d 530
    ,
    552 (Tenn. 1992). We view these remarks to be an evaluation of the defendant’s
    demeanor based upon evidence in the record.
    B. SYMPATHY
    The defendant contends that the state appealed to the jury’s sympathy by
    referring to the presence of the victim’s family during its closing argument. Our
    supreme court has recognized that closing argument is a valuable privilege for both the
    state and the defense and that counsel is afforded wide latitude in presenting final
    argument to the jury. See State v. Cribbs, 
    967 S.W.2d 773
    , 783 (Tenn. 1998); State v.
    20
    Cone, 
    665 S.W.2d 87
    , 94 (Tenn. 1984). When a prosecutor’s argument goes beyond
    the latitude afforded, the test for determining if reversal is required is whether the
    impropriety “affected the verdict to the prejudice of the defendant.” Harrington v. State,
    
    215 Tenn. 338
    , 340, 
    385 S.W.2d 758
    , 759 (1965). Factors relevant to that
    determination include:
    1. The conduct complained of viewed in context and in light of
    the facts and circumstances of the case.
    2. The curative measures undertaken by the court and the
    prosecution.
    3. The intent of the prosecutor in making the improper
    statement.
    4. The cumulative effect of the improper conduct and any
    other errors in the record.
    5. The relative strength or weakness of the case.
    Judge v. State, 
    539 S.W.2d 340
    , 344 (Tenn. Crim. App. 1976).
    The prosecutor concluded his closing argument as follows:
    We don’t know much about Helen Hollis. We don’t
    know what sort of daughter she was to her parents. We don’t
    know what sort of friend she was to the people she worked
    with. We don’t know what sort of mother she was to her son.
    But we do know this, there were people who loved her, they’re
    here in the courtroom today, her mother and her step-father.
    And they’ve been present for every moment, they’ve heard
    every word that was uttered. And for them, this is the most
    important criminal case in the world. And I know you will give
    it the consideration it deserves.
    While we view the reference to the importance of the case to the victim’s parents to be
    inappropriate, we conclude that it did not affect the verdict to the defendant’s prejudice.
    The context of the statement indicates that it was made to impress upon the jury the
    importance of their deliberations. Considering the trial court’s instruction to the jury that
    the attorneys’ arguments were not evidence and the strength of the evidence against
    the defendant, we hold that the statement did not affect the verdict to the defendant’s
    prejudice.
    21
    V. CUMULATIVE EFFECT OF ERROR
    The defendant argues that the cumulative effect of the foregoing errors
    deprived him of a fair trial. We believe that the trial court’s errors are of such an
    inconsequential nature that no cumulative error exists.
    In consideration of the foregoing and the record as a whole, we affirm the
    judgment of conviction.
    Joseph M. Tipton, Judge
    CONCUR:
    James Curwood W itt, Jr., Judge
    John Everett Williams, Judge
    22