State of Tennessee v. Larry Edward Moore, Jr. ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 9, 2009
STATE OF TENNESSEE v. LARRY EDWARD MOORE, JR.
Direct Appeal from the Criminal Court for Davidson County
No. 2007-A-514 Monte Watkins, Judge
No. M2008-00703-CCA-R3-CD - Filed February 10, 2010
Following a jury trial, Defendant, Larry Edward Moore, Jr., was convicted of carjacking, a
Class B felony. The trial court sentenced Defendant as a Range III, career offender, to thirty
years. On appeal, Defendant challenges the sufficiency of the convicting evidence and also
argues that the trial court erred (1) in not redacting certain statements from Defendant’s
statement to the police which was introduced as an exhibit at trial; (2) in limiting Defendant’s
cross-examination of the victim about her use of drugs and whether she had received any
compensation from the Victim’s Compensation Fund; and (3) in denying Defendant’s motion
for a mistrial. After a thorough review, we affirm the judgment of the trial court.
Tenn. R. App. P. Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES and
J.C. M CL IN, JJ., joined.
Dawn Deaner, District Public Defender; Emma Rae Tennent, Assistant Public Defender;
Ginny Flack, Assistant Public Defender; and Katie Weiss, Assistant Public Defender,
Nashville, Tennessee, for the appellant, Larry Edward Moore, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Victor S. (Torry) Johnson III, District Attorney General; Deborah Housel, Assistant
District Attorney General; and Latasha Alexander, Assistant District Attorney General, for
the appellee, the State of Tennessee.
OPINION
I. Background
Alysia Blackburn, the victim, testified that on December 27, 2006, she went to a
jewelry store on Gallatin Road at approximately 4:15 p.m. to inquire about adjusting a
bracelet she had received as a birthday present the day before. The victim left the engine to
her grey 1999 Nissan Altima running while she went into the store. From inside the store,
the victim observed Defendant walk by and look at her vehicle, so she went outside, turned
the engine off, and locked the vehicle. The victim returned to the store, and Defendant
entered the business as she was talking to the store’s owner, Howard Lane. Defendant asked
Mr. Lane if he could use Mr. Lane’s telephone to call his wife because his vehicle would not
start. When Defendant was unsuccessful in reaching his wife, the victim asked Defendant
if she could help, and Defendant responded, “Yeah.” The victim and Defendant got into the
victim’s Altima, and Defendant directed her to drive to a house on Riverwood Drive. The
victim said that Defendant told her that he “really appreciate[d] it.” The victim stated that
she was “just being nice” because she had previously been in a similar situation.
The victim pulled into the driveway indicated by Defendant and began to feel uneasy.
The victim stated that Defendant suddenly struck her several times in the face. The victim
struggled with Defendant as he attempted to move from the passenger seat to the driver’s
seat. The victim reached for her purse in the backseat, and Defendant struck her again. The
victim stated that she gave up at that point and ceased struggling. She got out of the Altima,
and Defendant drove off.
Eugene Skaggs came out of his house and asked the victim if she was all right. The
victim said that she was crying, and she told Mr. Skaggs that Defendant had stolen her
vehicle. The victim stated:
[a]nd they kept staring at me, and I’m like, “Is my face messed up?” And he
was, like, “Yes, ma’am.” So that really made me cry. And I knew that my
family [was] going to be upset because I tried to help somebody out.
The victim said that Mr. Skaggs had trouble understanding her because her face was
swollen. Mr. Skaggs called the police and the victim’s family. The victim was transported
to the hospital by ambulance, and the emergency technician was concerned that the victim’s
jaw was broken. The victim told police officers that Defendant’s vehicle was parked at the
jewelry store. The victim also told them that her purse was in her vehicle, and it contained,
among other items, $212, two cell phones, and a debit card.
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The records for the victim’s cell phone were introduced as an exhibit at trial and
showed that an outbound call was made with the victim’s cell phone at 5:22 p.m. on
December 27, 2006. The victim stated that she did not recognize the telephone number
which received the call. The victim said that she identified Defendant as the perpetrator from
a photographic lineup on December 27, 2006.
The victim stated that her jaw was not broken, but her face was bruised and swollen
for approximately one and one-half weeks, and people had difficulty understanding her when
she tried to speak. The victim said that she never recovered her Altima or any of the items
in the vehicle. The victim stated that she did not give Defendant permission to take her
vehicle.
On cross-examination, the victim acknowledged that she did not tell the investigating
officers that she observed Defendant looking at her vehicle before he entered the store. The
victim stated that she did not report the theft of the credit cards to her bank and
acknowledged that she was never notified that the credit cards had been used. The victim
said that Defendant told Mr. Lane that the alternator on his vehicle was not working, and Mr.
Lane and Defendant discussed the location of the nearest car parts store. The victim
acknowledged that Defendant did not make any threatening remarks on the drive to
Riverwood Drive, and she described him as “nice.”
Mr. Skaggs testified that he lived at 1140 Riverwood Drive. Mr. Skaggs stated that
he was working at his computer on December 27, 2006, when he noticed on his computer
screen the reflection of a vehicle pulling into his driveway. Mr. Skaggs did not recognize the
vehicle and thought the driver would turn around. Mr. Skaggs observed a man and woman
in the vehicle and believed at first that the man was slapping the woman playfully. Mr.
Skaggs then realized that the man was striking the woman, and he went outside. Mr. Skaggs
said that the man got out of the vehicle and pulled the victim out. The man then got back in
the vehicle and drove off. Mr. Skaggs said that he gave the victim ice for her face and called
911. Mr. Skaggs stated that he was unable to identify the man who drove off in the victim’s
vehicle.
Howard Lane testified that he owned a jewelry store on Gallatin Road. Mr. Lane
knew the victim because she had visited the store before the incident. Mr. Lane said that the
victim stopped by the store on December 27, 2006, to check on a bracelet’s repair. Mr. Lane
said that Defendant entered the store while he was talking to the victim and asked to use Mr.
Lane’s telephone because his vehicle would not start. Mr. Lane handed Defendant his cell
phone, but Defendant was not able to reach anyone. Mr. Lane described Defendant as
“cordial,” and he, the victim, and Defendant conversed between ten and fifteen minutes. Mr.
Lane said that the victim did not have any injuries to her face while she was in the store. Mr.
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Lane later identified Defendant from a photographic lineup as the man who left his store with
the victim on December 27, 2006.
Officer Jason L. Smith, with the Metro Nashville Police Department, stated that the
victim was “crying and very afraid” when he arrived at the residence on Riverwood Drive.
Officer Smith observed a contusion on the victim’s cheek which was bleeding. Based on the
information provided by the victim and Mr. Skaggs, Officer Smith drove to the jewelry store
on Gallatin Road. He located a van matching the victim’s description and recorded the
vehicle’s VIN, which he relayed to Detective Michael Windsor with the Metro Police
Department. On cross-examination, Officer Smith acknowledged that on his incident report,
he indicated that the victim had sustained an “apparent minor injury.”
Detective Windsor interviewed the victim at the hospital. Detective Windsor testified
that the victim had a large amount of swelling around her cheek and a small laceration in the
middle of the swelling. Detective Windsor identified the owner of the van parked near Mr.
Lane’s jewelry store through its VIN. Detective Windsor developed Defendant as a suspect
based on the information received from the vehicle’s owner. Detective Windsor prepared
a photographic line-up, and the victim identified Defendant as the perpetrator.
Detective Windsor arrested Defendant on December 28, 2006. Defendant was read
his Miranda rights and executed a written waiver of those rights. A redacted version of the
videotape of Defendant’s interview was played for the jury. Detective Windsor stated that
he determined that the outbound call made by the victim’s cell phone on December 27, 2006,
at 5:22 p.m. was made to Defendant’s home telephone number.
II. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to support his conviction of
carjacking. Specifically, Defendant contends that the evidence failed to show that Defendant
used either force or intimidation to take the victim’s vehicle. Defendant submits that at most
he is guilty of the unauthorized use of a vehicle.
When a defendant challenges the sufficiency of the convicting evidence, we must
review the evidence in a light most favorable to the prosecution in determining whether a
rational trier of fact could have found all the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
Once a jury finds a defendant guilty, his or her presumption of innocence is removed and
replaced on appeal with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn.
1991). The defendant has the burden of overcoming this presumption, and the State is
entitled to the strongest legitimate view of the evidence along with all reasonable inferences
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which may be drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). The jury is presumed to have resolved all conflicts and drawn any reasonable
inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Questions concerning the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not
this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to
findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination
of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990).
Before considering Defendant’s challenge to the sufficiency of the convicting
evidence, we observe that we were unable to review the redacted videotape of Defendant’s
statement to the police which was introduced as Exhibit 6 at trial and played for the jury.
The video tape would only play in “fast forward” mode making it impossible to follow the
interview. We glean from the record that certain portions of Defendant’s statement,
primarily those concerning Defendant’s comments about his prior convictions, imprisonment,
and drug use, were redacted before the videotape was introduced as an exhibit at trial.
Defense counsel was aware that there was a problem with the videotape as reflected in her
motion filed with this Court on December 31, 2008. Within this motion, defense counsel
informed this Court that when she attempted to view Exhibit 6 after trial, she was unable to
play back the recording, but she did not provide any clarification as to the type of problem
she encountered. Defense counsel stated, however, that she was able to produce a viewable
DVD copy of the videotape containing the redacted version of Defendant’s statement.
Defense counsel explained that “[c]oncerned that this Court and the Attorney General may
face similar difficulties playing the VHS tape, [she was] seeking to have the trial court certify
the DVD as a supplemental exhibit to the record in this case, pursuant to T.R.A.P. 24(e).”
There is no indication, however, that defense counsel followed through with this intention.
In her brief, defense counsel said that she was unable to include the DVD in the record on
appeal because the State refused to stipulate to the accuracy of the DVD.
Rule 24(e) of the Tennessee Rules of Appellate Procedure, provides:
[i]f any matter properly includable is omitted from the record . . . or is
misstated therein, the record may be corrected or modified to conform to the
truth. Any differences regarding whether the record accurately discloses what
occurred in the trial court shall be submitted to and settled by the trial court
regardless of whether the record has been transmitted to the appellate court.
The record may be corrected or modified “at any time, either pursuant to stipulation
of the parties or on the motion of a party or the motion of the trial or appellate court.” Tenn.
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R. App. P. 24(e), Comm’n Cmts. Thus, notwithstanding the State’s unwillingness to enter
into a stipulation as to the contents of the DVD, it appears that defense counsel did not take
the necessary steps in the trial court to insure a complete record on appeal.
It is the responsibility of appellant to prepare an accurate and complete record of what
transpired in the trial court with respect to each and every issue that forms the basis for the
appeal. Tenn. R. App. P. 24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v.
Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Nonetheless, we conclude that the
record is sufficient under the facts of this case to permit meaningful review of this issue, and,
in the interests of justice, we do so.
Carjacking, as charged in this case, “is the intentional or knowing taking of a motor
vehicle from the possession of another by use of . . . [f]orce or intimidation.” T.C.A. § 39-
13-404(a)(2). “‘Force’ means compulsion by the use of physical power or violence and shall
be broadly construed to accomplish the purposes of this title.” Id. § 39-11-106(12).
Defendant’s unredacted statement, which was introduced as Exhibit 1 at the
suppression hearing but not at trial, is included in the record on appeal. In his statement,
Defendant admitted to the investigating officers that he took the victim’s vehicle without her
permission, but he insisted that force was not involved. Defendant said that the victim
charged him twenty dollars for the ride, drove him to a residence on Riverwood Drive, and
then exited the vehicle, leaving the car keys and her belongings behind. Defendant waited
for her return for a few minutes and then drove back to the jewelry store to check on his van.
Defendant stated that he returned to Riverwood Drive, waited a few minutes more, and then
drove away in the victim’s vehicle. Defendant said that he left the vehicle in the parking lot
of a gas station near the jewelry store with the keys in the ignition. During his interview,
Defendant repeatedly denied striking or otherwise intimidating the victim to gain access to
the vehicle.
Viewing the evidence in a light most favorable to the State, however, the victim
testified that she offered Defendant a ride when he was unable to reach anyone after his
vehicle failed to start. Defendant directed the victim to a residence on Riverwood Drive.
After the victim pulled into the residence’s driveway, Defendant struck her in the face several
times as he attempted to climb into the driver’s seat from the passenger seat. The victim said
that she struggled with Defendant but eventually gave up when Defendant struck the victim
one last time as she attempted to retrieve her purse from the backseat. The victim exited the
car, and Defendant drove off. Mr. Skaggs observed Defendant strike the victim while he and
the victim were inside the car. Mr. Skaggs stated that the man inside the vehicle immediately
drove off after the victim exited the vehicle, and Mr. Skaggs rendered assistance to the
victim. Mr. Skaggs described the injuries the victim sustained as a result of her encounter
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with Defendant. The victim testified that neither her vehicle nor her other personal
belongings contained in it were recovered.
The weight and credibility of the State witnesses’ testimony and the reconciliation of
conflicts in their testimony, if any, are matters entrusted exclusively to the jury as the trier
of fact. By its verdict, the jury obviously found the testimony of the State’s witnesses to be
credible, and rejected Defendant’s description of his interaction with the victim on December
27, 2006. Defendant’s conduct of striking the victim repeatedly in the face until she
relinquished control of her vehicle is sufficient to support a finding that Defendant
intentionally and knowingly took possession of the victim’s vehicle without her permission
and with the use of force. Based on our review, we conclude that a rational trier of fact could
find beyond a reasonable doubt that Defendant was guilty of the offense of carjacking.
Defendant is not entitled to relief on this issue.
III. Evidentiary Issues
A. Redactments from Videotaped Statement
Defendant argues that the trial court erred in not redacting certain comments from his
videotaped statement which he made about his wife during the interview. Defendant
contends that such statements were not relevant to a material issue at trial and were
prejudicial because they cast him in a bad light before the jury.
The trial court conducted a pre-trial hearing concerning Defendant’s request for
redactions, and the State agreed to redact Defendant’s comments about his prior criminal
history and his use of drugs, and Detective Windsor’s comments about the potential charges
Defendant was facing. Defendant then requested the redaction of his comments about his
wife, and the following colloquy occurred:
THE COURT: You’re saying it’s just not relevant?
[DEFENSE COUNSEL]: Whether he gets along with his wife or not is
completely irrelevant to this incident.
THE COURT: Well, that’s basically true but [does] it fall within
the area where it should be redacted? I mean,
irrelevant information comes in at trial all the
time.
...
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[DEFENSE COUNSEL]: It’s irrelevant, and the point is its prejudicial.
THE COURT: Well, that’s the point I’m making, whether its
prejudicial.
After further discussion, the trial court stated that it would make a final ruling on the
day of trial but it does not appear from the record that the trial court ruled on Defendant’s
motion. The State introduced Defendant’s redacted videotaped statement during Detective
Windsor’s direct examination as Exhibit 6 without further objection by Defendant. Prior to
playing the videotape for the jury, the State requested a bench conference in the presence but
out of the hearing of the jury which was not transcribed. The videotape was then played,
again without further objection by Defendant.
It appears that the trial court’s initial response to Defendant’s objection was that the
challenged evidence was not relevant, but that Defendant had failed to show that it was
prejudicial. See Tenn. R. Evid. 401 (defining “relevant evidence” as “evidence having 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”). Although as
the trial court observed, irrelevant evidence may make its way into a trial, this generally
occurs only when the party against whom the evidence is offered fails to object. See State
v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000) (quoting State v. Harrington, 627 S.W.2d 345,
348 (Tenn.1981)) (holding that “[w]hen a party does not object to the admissibility of
evidence . . . the evidence becomes admissible notwithstanding any other Rule of Evidence
to the contrary, and the jury may consider that evidence for its ‘natural probative effects as
if it were in law admissible’”). Our rules of evidence, however, clearly provide that
“[e]vidence which is not relevant is not admissible.” Tenn. R. Evid. 402.
Nonetheless, it does not appear that the trial court made a definitive ruling on the
admissibility of the challenged statements before the videotape of Defendant’s redacted
statement was played for the jury, nor does the record indicate that Defendant renewed his
objection prior to the playing of the videotape to the jury. Once a trial court “makes a
definitive ruling on the record admitting or excluding evidence, either at or before trial, a
party need not renew an objection or offer of proof to preserve a claim of error for appeal.”
Tenn. R. Evid. 103(a)(2). As this Court has cautioned, however, “where the ‘issues are only
tentatively suggested or the record only partially and incompletely developed in connection
with a motion in limine, . . . [c]ounsel necessarily take some calculated risks in not renewing
objections.” State v. Alder, 71 S.W.3d 299, 302 (Tenn. Crim. App. 2001) (quoting State v.
McGhee, 746 S.W.2d 460, 462 (Tenn. 1998)); see also Tenn. R. App. P. 36 (a) (providing
that “[n]othing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
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prevent or nullify the harmful effect of an error”). Also hindering our review is the fact that
we do not have a reviewable copy of the redacted version of Defendant’s statement to the
police, and we, therefore, do not know which portions were redacted and which were not.
When the record is incomplete on an issue or does not contain the proceedings relevant to
an issue, this court is precluded from considering the issue. Tenn. R. App. P. 13(c); Miller,
737 S.W.2d at 558; State v. Griffin, 649 S.W.2d 9, 10 (Tenn. Crim. App. 1982); State v.
Hoosier, 631 S.W.2d 474, 476 (Tenn. Crim. App. 1982). Moreover, because the record does
not clearly establish what occurred in the trial court, Defendant may not find relief under a
plain error analysis. Tenn. R. App. P. 36(b); State v. Adkisson, 899 S.W.2d 626, 641-42
(Tenn. Crim. App. 1994). Based on the foregoing, we conclude that Defendant has waived
appellate review of this issue and is not entitled to relief.
B. Victim’s Compensation Fund
Defendant argues that the trial court erred in not allowing him to cross-examine the
victim about her claim for criminal victim’s injury compensation under Tennessee Code
Annotated section 29-13-101, et. seq. During the victim’s cross-examination, the following
colloquy occurred:
[DEFENSE COUNSEL]: Now, we’ve talked about some of the things that
you lost out on, and that were missing from you,
not, of course, the least of which was the car.
You applied for and got a check from the victim’s
compensation fund, right?
[THE VICTIM]: Yes, ma’am.
[THE STATE]: Judge, I’m going to object to the relevance on
this.
THE COURT: Sustained.
[DEFENSE COUNSEL]: That’s fine.
[THE STATE]: Thank you, your Honor. I’d ask that that be
stricken.
THE COURT: Members of the jury, strike that question and
answer. It has nothing to do with this case.
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Defendant did not respond to the State’s objection nor object to the trial court’s ruling.
To the contrary, Defendant simply responded, “That’s fine,” and did not make an offer of
proof with regard to the excluded evidence. Instead, Defendant abandoned this line of
questioning when the victim’s cross-examination was resumed. Based on our review, we
conclude that Defendant has failed to properly preserve this issue for appeal. See Tenn. R.
App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”); State v. Rhoden, 739 S.W.2d 6, 12 (Tenn.
Crim. App. 1987) (finding waiver where “no effort was made to advise the trial court of the
evidence the appellant would seek to introduce at trial or make an offer of proof so an
informed ruling could by made by the trial judge). Defendant is not entitled to relief on this
issue.
C. Limitation of the Victim’s Cross-Examination
Defendant argues that the trial court’s exclusion of evidence that the victim used drugs
violated his constitutional right to present a defense. Defendant submits that there was a
factual basis for the inquiry, and that such evidence “would have corroborated crucial
elements of the defense.” Defendant also contends that the trial court improperly invaded
the province of the jury by making its own assessment of the victim’s credibility during the
jury out hearing and encroached upon Defendant’s right to trial by jury.
The victim filled out a medical questionnaire pertaining to a CT Scan at the hospital
after the incident. The questionnaire asked, “Do you smoke?” The victim wrote, “Yes.”
Beside the question, “If yes, number of years,” the victim wrote, “4.” In response to the
question, “Packs per day,” the victim wrote “marijuana.” The victim did not answer the next
question, “If you have quit smoking, when?” The State, anticipating Defendant’s intent to
cross-examine the victim about her drug usage based on these responses, asked for a hearing
out of the presence of the jury before the victim was called to testify on direct examination.
The State essentially sought to exclude the evidence on relevancy grounds. During the offer
of proof, the victim explained that she wrote the number “4" on the medical form because
she stopped using marijuana four years prior to filling out the form. The victim testified that
she did not use drugs in 2006, and specifically did not use drugs on December 27, 2006. On
cross-examination, the following colloquy occurred:
[DEFENSE COUNSEL]: The first line says “Do you smoke,” right?
[THE VICTIM]: Yes, ma’am.
[DEFENSE COUNSEL]: It doesn’t say, “Did you smoke,” does it?
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[THE VICTIM]: No, ma’am.
[DEFENSE COUNSEL]: Okay. And you took that to mean that it would be
relevant that you smoked four years ago?
[THE VICTIM]: Actually, to be honest, I wasn’t really paying
attention. . . . I was in a state of shock. And all
my life I’m always in a rush to do anything, so I
was just writing.
At the jury-out hearing, Defendant argued that the victim’s drug usage was relevant
because it addressed “the motive for this event” which Defendant described as “a strange
crime.” Based on the victim’s testimony during the offer of proof, Defendant also argued
that the discrepancy between the victim’s responses on the medical questionnaire and her in-
court explanation of the responses called into question the victim’s credibility.
At the conclusion of the offer of proof, the trial court found:
Well, this, really, sort of blends several issues, one of which is 404
issues, as to whether this matter has probative value, whether it’s relevant in
this particular case. Under 404 unless it fits under one particular – any
particular exception – this is not a matter that needs to go to the jury . . .
because you’re trying to prove – it basically goes to the character of the person.
And the Court simply believes, with respect to the 404 issue, it is not a relevant
matter and should be excluded.
Now what about the issue of credibility? The Court is always
concerned about a witness’s credibility. But again, here is a case where
whether she smokes marijuana, or does not smoke marijuana, or smoked
marijuana in the past, the Court doesn’t see that as a credibility issue. I think
the argument being made by the defense is whether her answers to particular
questions raised an issue of credibility. She is the one who answered the direct
questions that she had not smoked for at least four years, did not smoke that
day, or during that month, and didn’t smoke that day in particular because she
worked two jobs, apparently meaning that she couldn’t smoke and work two
jobs as well at the same time. So – witnesses are, obviously, presumed to be
truthful. Her explanation for how she interpreted the questions and the reasons
for the answers she gave, those have to, basically, be accepted by the Court.
I will allow this to be made a separate exhibit for other purposes, but making
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that a fact issue at trial, the Court just doesn’t see that that is appropriate,
because this really doesn’t have anything to do with the trial itself.
Our supreme court has recognized that “[t]he Sixth Amendment and the Due Process
Clause of the Fourteenth Amendment clearly guarantee a criminal defendant the right to
present a defense.” State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000). A defendant’s
constitutional right to confront the witnesses against him includes the right to conduct
meaningful cross-examination. State v. Wyrick, 62 S.W.3d 751, 770 (Tenn. Crim. App.
2001). Denial of the defendant’s right to effective cross-examination is “‘constitutional error
of the first magnitude’” and may violate the defendant’s right to a fair trial. State v. Hill, 598
S.W.2d 815, 819 (Tenn. Crim. App. 1980) (quoting Davis v. Alaska, 415 U.S. 308, 318, 94
S. Ct. 1105, 1112 (1974)). “The propriety, scope, manner and control of the cross-
examination of witnesses, however, rests within the sound discretion of the trial court.” State
v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995); Coffee v. State, 216 S.W.2d 702,
703 (1948). Furthermore, “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 confrontation, witness safety, or merely repetitive or marginally
relevant interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994).
In State v. Brown, our supreme court set forth the necessary analysis when
determining whether the constitutional right to present a defense has been violated by the
exclusion of evidence. Brown, 29 S.W.3d at 433-434. Specifically, we must consider
“whether: (1) the excluded evidence is critical to the defense; (2) the evidence bears
sufficient indicia of reliability; and (3) the interest supporting exclusion of the evidence is
substantially important.” Id. at 434.
“[W]hether excluded evidence is critical to a defense is a fact-specific inquiry.” State
v. Flood, 19 S.W.3d 307, 317 (Tenn. 2007) (citing Chambers v. Mississippi, 410 U.S. 284,
303, 93 S. Ct. 1038, 1049 (1973)). “Our supreme court has suggested that for evidence to
be considered critical to the defense, the evidence must have some probative value and
‘exclusion of the evidence would undermine an element of a particular defense.’” State v.
Cyntoia Denise Brown, No. M2007-00427-CCA-R3-CD, 2009 WL 1038275, at *29 (Tenn.
Crim. App., at Nashville, Apr. 20, 2009), perm. to appeal denied (Tenn. Sept. 28,
2009)(quoting Flood, 219 S.W.3d at 317). Regarding the third Brown factor, the interests
supporting exclusion of the evidence, a criminal defendant’s right to confront and cross-
examine witnesses against her or him is limited by Rule 402 of the Tennessee Rules of
Evidence in that neither party “may cross-examine a witness on matters that are irrelevant.”
State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). As our supreme court has
observed, “the right to confront witnesses is satisfied if defense counsel receives wide
latitude at trial to cross-examine, because the confrontation clause only guarantees ‘an
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opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense may wish.’” State v. Middlebrooks, 840
S.W.2d 317, 332-33 (Tenn. 1992), superceded by statute on other grounds as stated in State
v. Stout, 46 S.W.3d 689, 705 (Tenn. 2001).
Relevant evidence is defined as “evidence having 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.” Tenn. R. Evid. 401. Under Tennessee Rule
of Evidence 402, irrelevant evidence is not admissible. Relevant evidence is generally
admissible but may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. See id. 402, 403. A trial court’s evidentiary ruling based on
relevance is reviewed on appeal for an abuse of discretion. See State v. Dubose, 953 S.W.2d
649, 652 (Tenn. 1997).
i. Character Evidence
At the hearing, the trial court found that the victim’s use of drugs was character
evidence that was not relevant and, therefore, inadmissible under Rule 404 of the Tennessee
Rules of Evidence. Defendant argues, however, that “evidence that the victim used drugs
regularly, used drugs that day, or was seeking to buy drugs would have corroborated crucial
elements of his defense.” That is, the evidence would corroborate “the suggestion raised in
[Defendant’s] statement that his interactions with the victim were drug-related,” and “would
have undermined the account of events presented by the State.” Defendant points out that
he told Detective Windsor that the victim charged him twenty dollars for the ride, the victim
drove to a residence on Riverwood Drive, the victim exited her vehicle and never returned.
Generally, Rule 404(a) provides that “[e]vidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity therewith.” Tenn.
R. Evid. 404(a). Nonetheless, evidence of a victim’s character may be admissible under
certain circumstances. For example, under Rule 404(a)(2), the defendant in a criminal case
may offer “evidence of a pertinent trait of character” of the victim. “Evidence is called
‘pertinent’ when it is directed to the issue or matters in dispute, and legitimately tends to
prove the allegations of the party offering it.” Black’s Law Dictionary 1145 (6th ed. 1990).
In other words, to qualify as “pertinent,” the character evidence must be relevant. Id.
According to Defendant’s unredacted statement, which is the only reviewable copy
of Defendant’s videotaped statement in the record on appeal, Detective Windsor asked
Defendant why the victim would leave him unattended in her vehicle with her purse and car
keys for an expended period of time. Defendant said that he believed the victim simply
wanted his twenty dollars. Defendant stated that he did not know if the victim had a drug
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problem like himself, but explained that he did not believe the victim wanted his money to
purchase drugs. Defendant said that he did not think the house on Riverwood Drive was a
“drug house” because it was “not that kind of neighborhood.” Defendant later insisted
during the interview that the incident “didn’t have nothing [sic] to do with drugs.”
The record on appeal does not indicate whether these comments were redacted from
Defendant’s statement before the videotaped statement was played for the jury. Nonetheless,
Defendant’s theory at trial focused on his suggestion that his altercation with the victim was
prompted by some event other than the taking of her vehicle. Defendant contends that
information concerning the victim’s use of drugs would provide circumstantial evidence to
support his suggestion that the reason he struck the victim was drug-related. Defendant’s
theory of defense at trial, however, was just that, a suggestion based solely on the argument
of counsel. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim .App. 1988) (citations
omitted) (observing that the arguments of counsel are not evidence); State v. Calvin Lee
Sneed, No. 03C01-9611-CR-00444, 1998 WL 309137, at *10 (Tenn. Crim. App., at
Knoxville, June 12, 1998), perm. to appeal denied (Tenn. Feb. 16, 1999) (concluding that
testimony that the victim “knew how to push [the defendant’s] button” was pertinent
character evidence when the proof at trial fairly raised the issue of adequate provocation in
a first degree murder case). There was no evidence presented at trial that drugs were in any
way related to the offense, and defense counsel did not attempt during the offer of proof to
establish any causal connection between the victim’s use of marijuana, whether current or
prior, and the taking of her vehicle. Any suggested connection, standing alone, between the
victim’s use of drugs and Defendant’s culpability for the charged offense is too tenuous for
this testimony to be considered critical to the defense. We conclude that the trial court did
not err in excluding the evidence on this basis.
ii. Victim’s Credibility
Defendant argues that the trial court improperly based its evidentiary rulings during
the offer of proof on its own assessment of the victim’s credibility. Defendant submits that
by finding that the victim’s explanations as to the responses on the medical questionnaire
“have to be accepted by the court,” the trial court prevented the jurors “from making a fair
and informed judgment of the crucial witness’s credibility” in violation of Defendant’s Sixth
Amendment right to trial by jury.
We agree with Defendant’s argument to the extent that the procedure utilized by the
trial court during the hearing was improper in part. The function of an offer of proof is to
demonstrate the substance, purpose, and relevance of the excluded evidence so that the trial
court may make an informed ruling. Alley v. State, 882 S.W.2d 810, 815 (Tenn. Crim. App.
1994). In so doing, however, it is well established that the jurors are the sole arbiter of
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credibility issues. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Thus, “[a]ny
withholding of a factual issue from the jury’s determination because of judicial disbelief [or
belief] of a witness would invade the province of the jury and impinge upon a defendant’s
constitutional right to trial by a jury.” State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim.
App. 1993).
At the jury-out hearing, the State essentially argued that potentially damaging
impeachment evidence is not “relevant” if it is shown during an offer of proof that the
evidence is either “not true” or can be “explained away.” However, these are factors that are
reserved for exploration during redirect examination if, indeed, the challenged evidence is
relevant and its probative value is not outweighed by its prejudicial effect. Tenn. R. Evid.
402, 403. If the trial court found that evidence of the victim’s drug use, whether prior or
current was relevant, it could not then exclude the evidence because the trial court believed
the witness’s explanation as to why she answered the medical questions as she did. In other
words, a trial court cannot find otherwise relevant evidence irrelevant based on its assessment
of the witness’s credibility during the jury-out hearing.
Although the victim’s drug use was inadmissible as substantive evidence under Rule
404(a)(2), evidence of a witness’s character may be admissible under Rules 607 and 608 as
impeachment evidence. Rule 607 of the Tennessee Rules of Evidence provides that “the
credibility of a witness may be attacked by any party.” Rule 608(b) of the Tennessee Rules
of Evidence provides that:
[s]pecific instances of conduct of a witness for the purpose of attacking or
supporting the witness’s character for truthfulness, other than convictions of
crime as provided in Rule 609, may not be proved by extrinsic evidence. They
may, however, if probative of truthfulness or untruthfulness and under the
following conditions, be inquired into on cross-examination of the witness
concerning the witness’s character for truthfulness or untruthfulness. . . .
Tenn. R. Evid. 608(b).
This Court, however, has previously found that a witness’s use of drugs is not
probative of truthfulness or untruthfulness. State v. Bledsoe, 626 S.W.2d 468, 470 (Tenn.
Crim. App. 1981); Hatchett v. State, 552 S.W.2d 414, 415 (Tenn. Crim. App. 1977); State
v. Craig Stephen Bourne, No. 03C01-9807-CR-00237, 1999 WL 826016, at *8 (Tenn. Crim.
App., at Knoxville, Oct. 18, 1999), perm. to appeal denied (Tenn. Apr. 24, 2000); State v.
Tommy Mack Blevins, No. 01C01-9501-CC-00010, 1995 WL 408263, at *2 (Tenn. Crim.
App., at Nashville, July 6, 19995), perm. to appeal denied (Tenn. Nov. 6, 1995). In Hatchett,
this Court observed:
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[t]he simple possession of marijuana is a misdemeanor. . . . This is not a crime
involving moral turpitude, or a crime of such character that the conviction
itself would discredit the testimony of the defendant. There is no connection
between the use or possession of marijuana and the veracity of a witness.
Hatchett, 552 S.W.2d at 415 (citations omitted).
Defendant also submits that the medical questionnaire was a prior inconsistent
statement admissible pursuant to Rule 613. See Tenn. R. Evid. 613 (providing that
“[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless
and until the witness is afforded an opportunity to explain or deny the same and the opposite
party is afforded an opportunity to interrogate the witness thereon, or the interests of justice
otherwise require”). Thus, in order to introduce the medical questionnaire as extrinsic
evidence, Defendant must first ask the victim during cross-examination if she used drugs.
Because this question is not proper impeachment evidence under Rule 608(b), Defendant
may not pose an otherwise irrelevant question as a prelude for introducing the medical
questionnaire under Rule 613. A party “cannot ask a witness an irrelevant but prejudicial
question, and then, under the theory of impeachment, predicate a second irrelevant and
prejudicial question upon the [witness’s] response to the first question.” State v. Adkisson,
899 S.W.2d 626, 646 (Tenn. Crim. App. 1994); see also State v. Leech, 148 S.W.3d 42, 56
(Tenn. 2004) (“Impeachment by extrinsic evidence as contemplated by Rule 613 must relate
to facts relevant to a material issue at trial.”); State v. Jones, 15 S.W.3d 880, 892 (Tenn.
Crim. App. 1999) (observing that “[i]mpeachment cannot be a ‘mere ruse’ to present to the
jury prejudicial or improper testimony”); Hatchett, 552 S.W.2d at 415 (concluding that
because the question concerning the defendant’s prior drug use was not proper for
impeachment purposes under Rule 608(b), a follow-up question concerning the defendant’s
prior conviction for possession of marijuana after the defendant denied that he used drugs
was also improper).
Based on a thorough review of the record, we conclude that although the trial court’s
procedure during the jury-out hearing was improper in part, the grounds advanced by
Defendant at the jury-out hearing for admitting the evidence of the victim’s drug use at trial
were ultimately determined to be inadmissible on the basis of the rules of evidence and not
an assessment of the victim’s credibility. Defendant is not entitled to relief on this issue.
IV. Closing Argument
Defendant argues that the trial court erred in not granting his request for a mistrial on
the basis that the prosecutor impermissibly commented on Defendant’s decision not to testify
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at trial. The State contends that its comments during rebuttal closing argument were a direct
response to Defendant’s comments during his counsel’s closing argument.
During closing argument, Defendant pointed out the inconsistencies between the
testimony of the victim, Mr. Skagg, and Mr. Lane and stated:
[b]ut you heard the testimony. And you must be left with part of you thinking,
“they didn’t, this wasn’t, that’s not what happened. [Defendant and the victim]
left together in this car and what occurred in this car, we simply don’t know
because [the State] didn’t bother to find out.
During rebuttal closing argument, the State responded as follows:
[THE STATE]: And when the defendant was asked, “What was
wrong with your van,” the defendant said, “uh-uh,
it overheated.” When he had already said to
another witness, [the victim], it was the alternator.
Was it overheated? Was it the alternator? Who
knows? Did he walk by Ms. Blackburn’s car and
see it filled with Christmas [gifts] and think, “I
want that?” I don’t know. That’s something that
the defendant can tell us, but he didn’t tell –
[DEFENSE COUNSEL]: I am going to object, Your Honor.
[THE STATE]: He did not tell Detective Windsor when he was –
THE COURT: Well, he didn’t testify, obviously.
[DEFENSE COUNSEL]: He has no obligation to prove anything.
THE COURT: Yes. Obviously he has no obligation to testify.
[DEFENSE COUNSEL]: Not just to testify. To prove anything, to present
any evidence in his case.
THE COURT: I understand that, [defense counsel]. All right.
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[THE STATE]: He didn’t tell Detective Windsor that. You didn’t
hear that. He said a whole bunch of things to
Detective Windsor, but he didn’t say that.
At the conclusion of the State’s rebuttal closing argument, Defendant requested the
trial court to declare a mistrial based on the foregoing comments by the prosecutor, which
the trial court denied.
A mistrial should be declared in criminal cases only in the event that a manifest
necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.
1991). In other words, a mistrial is an appropriate remedy when a trial court cannot continue
without causing a miscarriage of justice. State v. McPherson, 882 S.W.2d 365, 370 (Tenn.
Crim. App. 1994). The decision to grant a mistrial lies within the sound discretion of the trial
court, and that decision will not be overturned on appeal absent a clear abuse of that
discretion. State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998) (citing State v. Adkins, 786
S.W.2d 642, 644 (Tenn. 1990)). The burden of establishing the necessity for a mistrial lies
with the party seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).
Closing argument is a valuable tool for the parties during the trial process. State v.
Humphreys, 70 S.W.3d 752, 767 (Tenn. Crim. App. 2001). Attorneys are generally given
wide latitude in the scope of their arguments. State v. Berry, 141 S.W.3d 549, 586 (Tenn.
2004). Consequently, a trial court is accorded wide discretion in its control of the closing
arguments. State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). We will not
interfere with that discretion in the absence of abuse. State v. Sutton, 562 S.W.2d 820, 823
(Tenn. 1978). To show error, a defendant must show that the argument was so inflammatory
or the conduct so improper that it affected the verdict to the defendant’s detriment. Zirkle,
910 S.W.2d at 888.
It is well established that “[a] prosecutor is strictly prohibited from commenting on
the defendant’s decision not to testify.” State v. Thacker, 164 S.W.3d 208, 244 (Tenn. 2005)
(citing State v. Reid, 91 S.W.3d 247, 297 (Tenn. 2002)). However, it is well-established that
“a district attorney general may argue that the State’s evidence is uncontradicted. [Such]
argument does not violate the rule prohibiting comments on the failure of the defendant to
testify in support of his defense.” State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App.
1999 (citing State v. Rice, 638 S.W.2d 424 (Tenn. Crim. App. 1982).
It appears from the record that the prosecutor could have been heading in the direction
of making an improper comment on Defendant’s decision not to testify. However, after
Defendant’s prompt objection in the middle of the prosecutor’s sentence, the prosecutor
concluded with “did not tell Detective Windsor.” See State v. Reid, 91 S.W.3d 247, 296
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(Tenn. 2002) (concluding that it was not improper closing argument for the prosecutor to
comment on Defendant’s failure to explain the presence of his fingerprints on the victim’s
property during his statement to the police which was videotaped and played for the jury).
Based on our review, we conclude that the prosecutor’s closing comments do not warrant a
mistrial. Accordingly, the trial court did not abuse its discretion in denying Defendant’s
request for a mistrial. Defendant is not entitled to relief on this issue.
CONCLUSION
After a thorough review, we affirm the judgment of the trial court.
_________________________________
THOMAS T. WOODALL, JUDGE
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