State of Tennessee v. Roosevelt Pitts, III

01/05/2023
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 13, 2022
STATE OF TENNESSEE v. ROOSEVELT PITTS, III
Appeal from the Circuit Court for Rutherford County
No. 73282 James A. Turner, Judge
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No. M2022-00581-CCA-R3-CD
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In this delayed appeal, the Defendant-Appellant, Roosevelt Pitts, III, challenges his
Rutherford County jury convictions of robbery, three counts of felony reckless
endangerment, misdemeanor leaving the scene of an accident, and felony vandalism, for
which he received an effective sentence of eighteen years in prison. The Defendant argues
that the trial court erred in rejecting his challenge to two peremptory challenges based on
Batson v. Kentucky, 476 U.S. 79 (1986), and that the State engaged in prosecutorial
misconduct during closing arguments. Upon our review, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and JILL BARTEE AYERS, JJ., joined.
Steven Chase Fann, Murfreesboro, Tennessee, for the Defendant-Appellant, Roosevelt
Pitts, III.
Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant
Attorney General; Jennings H. Jones, District Attorney General; and Sara N. Davis,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
The Defendant does not challenge the proof supporting his convictions in this case.
We will therefore provide only a summary of the evidence as presented at trial. On the
morning of December 12, 2014, Carlos Velasquez and his ten-year-old daughter, Milagro,
were outside in the driveway of their Rutherford County home warming their truck and
waiting for the school bus. Velasquez saw a person, later identified as the Defendant,
crouched down behind his truck, pass by him, then get inside his truck. The Defendant
pushed Velasquez and his daughter with the door of the truck, struck Velasquez multiple
times, and yelled, “move, move, b----.” The Defendant put Velasquez’s truck in reverse
and began to drive away. A struggle ensued, and Velasquez fell into a mailbox and onto
the ground. At the time of the offense, Velasquez and his daughter were afraid and did not
give the Defendant permission to take the truck. Velasquez’s son called the police, and the
Defendant was reported to have been seen driving the stolen truck toward I-24. Another
witness observed the “commotion” in the driveway, saw the Defendant drive the truck
erratically down an adjoining highway, and then crash into a tree near an apartment
complex. The witness observed the driver get out, reach inside the truck, grab a backpack,
and take off running. The police responded to the location where the witness observed the
crash, walked behind the apartment complex, observed a black male matching the
description given by the victims, and took the Defendant into custody. Upon being advised
of his rights under Miranda, the Defendant told the officers that “he needed a ride to
Nashville, so he took the truck.” The Defendant also later requested his cell phone to be
retrieved from Velasquez’s truck, and a cell phone not belonging to Velasquez was
recovered from the passenger side floorboard of his truck. Velasquez’s truck, a 2010 Ford
F-150, was valued at $26,000, and he paid $4,000 out-of-pocket to repair the damage
caused by the Defendant.
The jury convicted the Defendant as charged in count one of the indictment of
robbery; in count three of a lesser included offense of reckless endangerment committed
with a weapon to wit: an automobile; in count four of reckless endangerment committed
with a deadly weapon to wit: an automobile; in count five of reckless endangerment
committed with a weapon to wit: an automobile; in count six of leaving the scene of an
accident resulting in damage to property with an amount of damages that exceeds $400;
and, in count seven of vandalism with a value of more than $1,000 but less than $10,000.
The jury found the Defendant not guilty of carjacking as charged in count two. The
Defendant was sentenced to ten years in prison for robbery, four years in prison for each
reckless endangerment conviction, eleven months and twenty-nine days in prison for
leaving the scene of an accident, and eight years in prison for vandalism. The trial court
ran the reckless endangerment, leaving the scene of an accident, and vandalism sentences
concurrently with each other and consecutively to the robbery sentence, for an effective
sentence of eighteen years. The trial court ordered each of these sentences to be served
consecutively to any prior convictions that the Defendant was ordered to serve based on
his violation of probation in those cases. The Defendant filed a motion for a new trial and
an addendum to it, both of which were denied by order on July 13, 2016.
In his first direct appeal, the Defendant argued that the State discriminated against
prospective jurors by excusing them for race-based reasons and that the State engaged in
prosecutorial misconduct during closing arguments. State v. Roosevelt Pitts, III, No.
M2016-01879-CCA-R3-CD, 2017 WL 1192114, *1 (Tenn. Crim. App. Mar. 30, 2017). In
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affirming the convictions, this Court concluded that the Defendant had waived these issues
based on an insufficient record because the Defendant failed to provide a transcript of the
jury selection process or the closing arguments on appeal. The Defendant filed for post-
conviction relief, arguing in part that appellate counsel was ineffective in failing to provide
a sufficient record in support of the issues on direct appeal. By order issued on March 25,
2022, the post-conviction court agreed and determined that while appellate counsel had
obtained the trial transcript and made appropriate references and citations to it in the
appellate brief, the Rutherford County Circuit Court Clerk had failed to submit the
transcript to the appellate court clerk. The post-conviction court granted the Defendant
relief in the form of a delayed appeal for the purpose of remedying the error in the prior
direct appeal. On May 3, 2022, the Defendant issued his notice of delayed appeal, and on
June 6, 2022, the Defendant filed a motion to waive the thirty-day timeline for the filing of
the notice of appeal. By order issued on June 13, 2022, this Court set out the unusual
posture of this case and waived the untimely filing of the notice of appeal. See Order,
Roosevelt Pitts, III v. State, No. M2022-00581-CCA-R3-PC (Tenn. Crim. App. June 13,
2022) (granting appellant’s request to waive thirty-day filing deadline). This matter is now
properly before this court for review.
ANALYSIS
I. Alleged Batson Violations. The Defendant contends that the trial court erred in
allowing the State to strike two (2) African American jurors from the jury venire with an
insufficient race-neutral explanation for each challenge. The Defendant argues that both
jurors’ responses ultimately showed they could be fair in analyzing Defendant’s case, and
that the State’s dismissal of each juror warrants a new trial. In response, the State contends
the trial court properly denied the Defendant’s Batson challenges because he failed to make
a prima facie case of purposeful discrimination, and the State provided race-neutral
explanations that were not pretextual.
We apply the following well-established legal framework to the issue presented
herein. The Equal Protection Clause of the United States Constitution prevents the State
from exercising peremptory challenges to excuse potential jurors on account of their
race. Batson, 476 U.S. at 89; State v. Hugueley, 185 S.W.3d 356, 368 (Tenn. 2006).
In Batson, 476 U.S. at 89, the United States Supreme Court held that the State’s use of
peremptory challenges to intentionally exclude jurors of the defendant’s race violates that
defendant’s right to equal protection under the Fourteenth Amendment to the United States
Constitution. A few years later, in Powers v. Ohio, 499 U.S. 400, 416 (1991), the Court
held that a criminal defendant may object to race-based exclusions of jurors through
peremptory challenges regardless of whether the defendant and the excluded jurors share
the same race.
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When a defendant alleges that the State is excluding a juror based on the juror’s
race, Batson provides a three-step process for determining when a peremptory challenge is
discriminatory. 476 U.S. at 96-98; see State v. Kiser, 284 S.W.3d 227, 255 (Tenn.
2009); Foster v. Chatman, 578 U.S. 488, 136 S. Ct. 1737, 1747 (2016). The first prong
requires the defendant to make a prima facie showing that a peremptory challenge has been
exercised on the basis of race. Batson, 476 U.S. at 93-94; Kiser, 284 S.W.3d at 255. A
defendant “may make out a prima facie case of purposeful discrimination by showing that
the totality of the relevant facts gives rise to an inference of discriminatory
purpose.” Batson, 476 U.S. at 93-94. Under this first step, the defendant need not establish
that the State’s challenge was “more likely than not the product of purposeful
discrimination.” Johnson v. California, 545 U.S. 162, 170 (2005); State v. Stephen
Maurice Mobley, No. E2020-00234-CCA-R3-CD, 2021 WL 3610905, at *16 (Tenn. Crim.
App. Aug. 16, 2021), appeal denied (Jan. 13, 2022). Additionally, “the exercise of even
one peremptory challenge in a purposefully discriminatory manner would violate equal
protection.” State v. Ellison, 841 S.W.2d 824, 827 (Tenn. 1992).
If the trial court determines that the defendant has made out a prima facie showing
that the peremptory challenge has been exercised on the basis of race, then the second step
requires the State to provide a race-neutral explanation for its challenge. Batson, at
97; State v. Echols, 382 S.W.3d 266, 281 (Tenn. 2012) (citing Kiser, 284 S.W.3d at 255-
56). The State’s race-neutral explanation “must be a clear and reasonably specific account
of the prosecutor’s legitimate reasons for exercising the challenge ... [but] need not be
persuasive, or even plausible.” Hugueley, 185 S.W.3d at 368 (citing Purkett v. Elem, 514
U.S. 765, 767-68 (1995)). “Unless a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race[-]neutral.’” Id. (quoting Purkett, 514
U.S. at 768).
If the State offers a race-neutral explanation, then the third prong requires the trial
court to determine if the defendant has established purposeful discrimination. Batson, 476
U.S. at 98; see Hugueley, 185 S.W.3d at 368 (“If a race-neutral explanation is provided,
the trial court must then determine, from all of the circumstances, whether the defendant
has established purposeful discrimination.”). When considering this third step, “the
decisive question will be whether counsel’s race-neutral explanation for a peremptory
challenge should be believed.” Hernandez v. New York, 500 U.S. 352, 365 (1991).
“[D]etermination of the prosecutor’s discriminatory intent or lack thereof turns largely on
the evaluation of the prosecutor’s credibility, of which the attorney’s demeanor is often the
best evidence.” State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994); see Miller-El v.
Cockrell, 537 U.S. 322, 339 (2003) (“Credibility can be measured by, among other factors,
the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are;
and by whether the proffered rationale has some basis in accepted trial strategy.”). “‘The
trial court may not simply accept a proffered race-neutral reason at face value but must
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examine the prosecutor’s challenges in context to ensure that the reason is not merely
pretextual.’” Kiser, 284 S.W.3d at 255 (quoting Hugueley, 185 S.W.3d at 368). At this
third step, “implausible or fantastic justifications may (and probably will) be found to be
pretexts for purposeful discrimination.” Purkett, 514 U.S. at 768. If the court finds that
the proffered reason is merely pretextual and that the challenge is racially motivated, then
the juror may not be excluded. Kiser, 284 S.W.3d at 255 (citing Hugueley, 185 S.W.3d at
369).
“[T]he ultimate burden of establishing purposeful discrimination lies with the party
objecting to the peremptory challenge.” Hugueley, 185 S.W.3d at 374 (citing Batson, 476
U.S. at 93); see also Purkett, 514 U.S. at 768 (recognizing that “the ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from, the opponent of
the strike”). The Tennessee Supreme Court has emphasized the importance of a trial
court’s findings regarding a Batson violation:
The trial judge must carefully articulate specific reasons for each
finding on the record, i.e., whether a prima facie case has been established;
whether a neutral explanation has been given; and whether the totality of the
circumstances support a finding of purposeful discrimination. The trial
court’s factual findings are imperative in this context.
Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 906 (Tenn. 1996); see Batson,
476 U.S. at 97.
“On appeal, the trial court’s findings are to be accorded great deference and not set
aside unless clearly erroneous.” Woodson, 916 S.W.2d at 906; see Foster, 136 S. Ct. at
1747 (noting that the third step in Batson “turns on factual determinations,” and that “‘in
the absence of exceptional circumstances,’ we defer to state court factual findings unless
we conclude that they are clearly erroneous.” (citation omitted)). “Deference [to the trial
court’s findings on the issue of discriminatory intent] is necessary because a reviewing
court, which analyzes only the transcripts from voir dire, is not as well positioned as the
trial court is to make credibility determinations.” Miller-El, 537 U.S. at 339.
During the first interaction with Juror One, the State had inquired generally to the
entire venire whether anyone individually had been a victim of a crime or whether they had
a family member who had been a victim of a crime.1 Juror One explained that her son had
been robbed at gunpoint and the perpetrators were never caught. The transcript from jury
selection reveals, in pertinent part, as follows:
1
We refrain from identifying jurors by name to protect their privacy.
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[STATE]: So, in this particular case, the Defendant is charged with robbery
and carjacking. So, it’s kind of a similar situation. It’s not exactly
the same because there is no deadly weapon, there’s no gun involved.
But it is a similar crime. . . Do you think that the fact that your son
was a victim of that and this Defendant is charged with a similar crime
that you could be fair in this case?
[JUROR ONE]: I think it will be a problem. Because I had – when you first
said did anybody have a crime [sic], I had a total blank. And I just
remembered that that happened to him.
[STATE]: Okay.
[JUROR ONE]: Because it was very traumatic for me, for my son, for my
family. So, you know, because I do – I did have a problem that day
thinking that my son could have been dead.
[STATE]: Right.
[JUROR ONE]: And I blacked it out until just now. Your son got robbed at
gunpoint. That – yeah, it would be.
[STATE]: Okay. Well, let me say this, because we have to make sure. What
we need to know from everyone in the jury pool is, as a juror you have
to listen to the evidence as it comes from the witness stand. And you
have to make your decision about the Defendant’s guilt based on the
evidence. The testimony, whatever exhibits we put in at trial. You
can’t use your own personal life experience to base that decision on.
You can’t be biased. That’s what we’re trying to determine here. Do
you think you can listen to the evidence and make your decision based
on the evidence, and not let your personal feelings get in the way?
[JUROR ONE]: I want to be fair. I would say no.
[STATE]: Okay. So, you do not think you could be fair.
[JUROR ONE]: I don’t know. So, I would rather not. Because right now I’m
having all kind --- like kind of anxiety type feelings going on right
now. So, I don’t feel ---
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[STATE]: Well, that could be from public speaking. Some people just don’t
like to talk in public.
[JUROR ONE]: Well, I’m a minister. So, I do a lot of public speaking.
[STATE]: Okay. So, that’s not it. That’s not it. Okay. Alright.
[JUROR ONE]: It should make it better for me to be able to be. But I want to
be truthful, as well as what I’m feeling inside here is not – not nothing
bad. But it’s like kind of ---
[STATE]: Well, it’s important to be honest.
[JUROR ONE]: It brought up some stuff that I had laid aside. And I’m not sure
if that is good or bad. I don’t know.
Juror Two responded affirmatively to the same question and explained that when
she and her husband lived in Atlanta, their car was stolen. She said the police ultimately
recovered their car, and she described the crime as “kids . . . joyriding.” After the exchange
with Juror Two, a second exchange with Juror One occurred during which she said her
brother had been arrested and incarcerated many times for robbery. She said he “just did
15 years for armed robbery.” She did not believe her brother was wrongfully accused nor
did she believe this would impact her ability to be fair in the instant case. A second
exchange then occurred with Juror Two during which she acknowledged that her brother
also had been arrested for selling drugs. She agreed he had in fact committed the crime
and that he was treated fairly by the police and the office of the district attorney. Juror
Two added that other family members whom she had never met had also been incarcerated.
Juror Two continued to share that “something happened to her in college” and she was
arrested with a group of people for having a sawed-off shotgun in the car, even though she
was unaware of the gun. She gave a detailed account of the encounter, advised that she
entered a guilty plea to probation, and denied the experience would impact her ability to
be fair in the instant case.
At the close of the question-and-answer phase of jury selection, the trial court began
the process of exercising peremptory challenges by the parties. See State v. Spratt, 31
S.W.3d 587, 598 (Tenn. Crim. App. 2000) (noting that a peremptory challenge allows for
the removal of jurors who may exhibit hostility or bias but whose removal for cause has
not been established). During what appears to be the third round of peremptory challenges,
defense counsel asked for a sidebar and lodged a Batson challenge in response to the State
exercising a peremptory challenge to Juror Two. The State insisted that a Batson challenge
was not appropriate until after there had been an established pattern of striking people of a
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cognizable racial group but nevertheless explained the basis for striking Juror Two was
because she said “she had been charged for a crime which she did not commit. She also
was unclear about whether she could be fair.” In denying the Defendant’s Batson
challenge, the trial court agreed that a pattern was required for a challenge to be upheld and
that the State had given a non-discriminatory reason for its challenge.
The State then explained that it was unclear of the trial court’s preference for when
to exercise challenges for cause and requested at that time to challenge Juror One for cause.
As grounds, the State asserted that Juror One “pretty much” said she could not be fair. The
State said that it asked her in “every possible way,” and Juror One said she could not be
fair. The State advised the trial court if sufficient grounds did not support a for cause
challenge, it intended upon using a preemptory challenge to strike Juror One. The trial
court then engaged Juror One in an extensive discussion regarding her ability to be fair and
Juror One remained on the jury until the next round of preemptory challenges. The State
exercised another peremptory challenge and struck Juror One from the venire. Defense
counsel lodged his second Batson challenge. In response, the State said the basis for
striking Juror One was because she had stated that she had “family members, including her
brother who had been charged with robberies” for which they had gone to jail. The State
insisted, and the trial court agreed, that this was a “non-discriminatory basis for the
challenge[.]” The transcript from the motion for new trial hearing and the order so denying
reflect that the trial court denied the Defendant’s Batson claims based on the same grounds
as stated during trial.
As for the first step in the Batson analysis, we note that the trial court did not
explicitly determine whether the Defendant had made a prima facie case of purposeful
discrimination. We can assume however based on this record that the court implicitly
found that the Defendant had satisfied the first prong of the Batson test. See
Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866 (“Once a prosecutor has offered a race-
neutral explanation for the peremptory challenges [without prompting] and the trial court
has ruled on the ultimate question of intentional discrimination, the preliminary issue of
whether the defendant had made a prima facie showing becomes moot.”); State v.
Hugueley, 185 S.W.3d at 371 (citing Woodson, 916 S.W.2d at 905). Moreover, although
the trial court’s findings are relatively sparse relating to the State’s race-neutral explanation
for the challenge, we conclude the record is sufficient for our review. State v. Carroll, 34
S.W.3d 317, 320 (Tenn. Crim. App. 2000). Finally, we are compelled to point out that the
State and the trial court erred in asserting that a pattern of strikes was required to establish
a prima facie case of discrimination under Batson. Although the United States Supreme
Court noted in Batson that a “pattern” of strikes against black jurors can give rise to an
inference of discrimination, the Court also stated that proof of a pattern is only one way to
establish a prima facie case. State v. Ellison, 841 S.W.2d 824, 827 (Tenn.
1992); Batson, 476 U.S. at 97, 106 S. Ct. at 1723; see also Stephen Maurice Mobley, No.
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E2020-00234-CCA-R3-CD, 2021 WL 3610905, at *16; Timothy Tyrone Sanders v. State,
No. M2003-02416-CCA-R3-PC, 2005 WL 354100, at *4 (Tenn. Crim. App. Feb. 15,
2005); Benjamin Blackwell v. State, No. W2001-02179-CCA-R3-PC, 2003 WL 402805,
at *6 (Tenn. Crim. App. Feb. 12, 2003); State v. Theddaeus Medford, No. W2001-02930-
CCA-R3-CD, 2003 WL 141049, at *3 (Tenn. Crim. App. Jan. 14, 2003)(concluding that
the trial court erred in finding the defendant failed to establish a prima facie case because
this was the “first challenge,” and the defendant had not shown a “pattern” of
discriminatory challenges). We emphasize, yet again, that the exclusion of a single juror
of a particular race may be sufficient to constitute a prima facie case, Ellison, 841 S.W.2d
at 827; Timothy Tyrone Sanders, 2005 WL 354100, at *4; Theddaeus Medford, 2003 WL
141049, at *3, and that a pattern is not required.
Regardless of the above error, the trial court required the State to articulate a race-
neutral basis for each peremptory challenge and made an independent determination after
each basis provided by the State in accord with the procedural dictates of Batson. Benjamin
Blackwell v. State, No. W2001-02179-CCA-R3-PC, 2003 WL 402805, at *6 (Tenn. Crim.
App. Feb. 12, 2003) (although trial court improperly required proof of pattern to find a
prima facie case of discrimination no ineffective assistance of counsel because trial court
also satisfied that State offered race-neutral explanation for the challenges). We also note
the Defendant does not take issue with the process in which the trial court engaged in
denying the Batson challenge. Accordingly, reversal and remand are unnecessary on this
ground, and we will review the merits.
The Defendant makes very little argument in support of this issue and merely
suggests generally that the trial court’s rejection of his Batson challenge was clearly
erroneous. In support, the Defendant casts doubt on the legitimacy of the State’s articulated
race-neutral basis by claiming each African American juror had a favorable bias in support
of the State and was nonetheless dismissed by the State. At this juncture, the focus of our
analysis is whether the State’s articulated race-neutral grounds offered in support of their
peremptory strikes were sufficient to rebut the Defendant’s prima facie case of purposeful
discrimination.
In this context, a neutral explanation means an explanation based on something
other than the race of the juror. Hernandez v. New York, 500 U.S. at 360, 111 S.Ct. at
1866. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason
offered will be deemed race neutral. Id. Indeed, “[w]hat Batson means by a ‘legitimate
reason’ is not a reason that makes sense, but a reason that does not deny equal
protection.” Carroll, 34 S.W.3d at 320 (quoting Purkett v. Elem, 514 U.S. 765, 767, 115
S.Ct. 1769 (1995)) (upholding a challenge because a juror was non-assertive and failed to
make eye contact). As outlined above, the State’s articulated basis for striking Juror Two
was because she had been charged with a crime she believed she did not commit and
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because she was “unclear” whether she could be fair. The State’s articulated basis for
striking Juror One was because she stated that she had “family members, including her
brother who had been charged with robberies” for which they had gone to prison. Courts
have consistently held that a family member’s criminal history is an acceptable, race-
neutral reason for striking a prospective juror. See e.g. Broom v. Denney, 659 F.3d 658,
661 (8th Cir. 2011) (noting that the incarceration of a family member is a legitimate race-
neutral reason justifying the use of a peremptory strike); United States v. Hendrix, 509
F.3d 362, 370-71 (7th Cir. 2007) (“legitimate and race-neutral” for prosecutor
to strike prospective black jurors who had relatives in prison because jurors with relatives
in prison may sympathize with the defendant or have feelings of animosity against the
prosecution); see also United States v. Alvarez-Ulloa, 784 F.3d 558, 566 (9th Cir. 2015)
(striking juror based on her negative experience with law enforcement is race-neutral
because it exhibits a potential bias against the government and in favor a criminal
defendant). The State’s articulated explanations in support of their peremptory challenges
were not based on the race of the jurors and therefore were sufficient to rebut the
Defendant’s prima facie case of purposeful discrimination.
Finally, to the extent the Defendant attempts to argue the State’s articulated basis in
support of its peremptory challenges were otherwise pretextual, we note that the Defendant
did not respond or object in the trial court after the State offered its race neutral basis for
each strike nor did he elaborate further on this issue in his motion for new trial. The
Defendant also failed to offer any statistics regarding the racial make-up of the jury venire
or a comparative juror analysis. Accordingly, we conclude the trial court’s denial of the
Batson challenge was not clearly erroneous, and the Defendant is not entitled to relief.
II. Alleged Prosecutorial Misconduct. During its rebuttal closing argument, the
State said, “I’m going to skip to vandalism. I don’t know what trial counsel is trying to
say. Again, I’m going back to smoke and mirrors[.]” The Defendant specifically contends
that he is entitled to reversal because “the State’s arguments could have improperly implied
to the jury that trial counsel was misrepresenting facts[.]” The Defendant further contends
that the State engaged in improper vouching by saying the victim “had no reason to lie”
about the money he paid to repair his truck. The State maintains the challenged statements
were an appropriate response to the defense argument and not a personal opinion about the
veracity of the evidence. The State additionally contends use of the phrase “smoke and
mirrors,” suggested that trial counsel sought to distract from the facts indicating the
Defendant’s guilt by focusing on unimportant details.
The Tennessee Supreme Court has repeatedly noted that “[c]losing argument is a
valuable privilege that should not be unduly restricted.” State v. Stephenson, 195 S.W.3d
574, 603 (Tenn. 2006) (citing State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001)). The trial
court has substantial discretion in controlling the course of arguments and will not be
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reversed unless there is an abuse of that discretion. Id. In addition, prosecutorial
misconduct does not constitute reversible error absent a showing that it affected the
outcome of the trial to the prejudice of the defendant. Id. (citing Terry v. State, 46 S. W.3d
147, 156 (Tenn. 2001)). However, an attorney’s comments during closing argument
“‘must be temperate, must be predicated on evidence introduced during the trial of the case,
and must be pertinent to the issues being tried.’” State v. Gann, 251 S.W.3d 446, 459
(Tenn. Crim. App. 2007) (quoting State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). An
improper closing argument will not constitute reversible error unless it is so inflammatory
or improper that it affected the outcome of the trial to the defendant’s prejudice. State v.
Thacker, 164 S.W.3d 208, 244 (Tenn. 2005) (appendix); State v. Cribbs, 967 S.W.2d 773,
786 (Tenn. 1998); State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003); State v.
Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996). This court must consider the
following factors when determining whether the argument of the prosecutor was so
inflammatory or improper to negatively affect the verdict:
(1) the conduct complained of viewed in the 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 arguments; (4) the cumulative effect of the improper conduct and
any other errors in the record; and (5) the relative strength and weakness of
the case.
State v. Chalmers, 28 S.W.3d 913, 917 (Tenn. 2000) (citations omitted).
In addition, there are five general areas of potential prosecutorial misconduct
related to closing argument:
(1) It is unprofessional conduct for the prosecutor intentionally to misstate
the evidence or mislead the jury as to the inferences it may draw.
(2) It is unprofessional conduct for the prosecutor to express his personal
belief or opinion as to the truth or falsity of any testimony or evidence or
guilt of the defendant.
(3) The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury.
(4) The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence, by injecting issues broader
than the guilt or innocence of the accused under the controlling law, or by
making predictions of the consequences of the jury’s verdict.
(5) It is unprofessional conduct for a prosecutor to intentionally refer to or
argue facts outside the record unless the facts are matters of common public
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knowledge.
State v. Sexton, 368 S.W.3d 371, 419 (Tenn. 2012), as corrected (Oct. 10, 2012) (citing
State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003)).
A summary of the defense closing argument is necessary to provide context.
Defense counsel began with a reference to a photograph of the victim’s driveway that had
been offered as an exhibit at trial to illustrate the length of the cars in the driveway. Defense
counsel stated the exact length of both cars and, with the aid of a tape measure, began to
illustrate the distance in court. The State objected and a lengthy bench conference ensued.
The State argued defense counsel was arguing facts not in evidence because the victim
testified the cars in the photograph were not in the driveway at the time of the offense, and
there was no testimony regarding the length of the cars in the photograph. The trial court
agreed with the State and prohibited defense counsel from using the tape measure in his
closing. However, the court allowed defense counsel to utilize the cars in the photographs
to establish distance. After argument resumed, defense counsel theorized from the relative
sizes of the cars in the driveway that the victim could not have been in possession of his
truck as required to find the Defendant guilty of robbery or carjacking. Defense counsel
continued to emphasize the distance between the victim, the front door, and his truck at the
time of the offense. Defense counsel also argued the victim’s testimony placing himself at
the door of the truck did not meet the legal definition of aggravated assault by use of the
truck as a deadly weapon. In support, defense counsel pointed to inconsistencies in the
testimony of the witnesses who observed the initial commotion in the victim’s driveway.
Defense counsel then focused his argument on the photographs of the truck at the crash
scene and observed, “you can see the grill[e] missing[.]” Defense counsel says, “Does that
look a little bit different to you actually out on the scene? Grille there. Damage over here
on this side, tree right here. Look at these photographs side by side. . . . This picture right
here, the passenger side light is busted out. This picture right here taken at the scene not.
I don’t know why that is, folks. You don’t know why that is. Minor discrepancy?”
During the State’s rebuttal closing argument, the following exchange occurred:
So, perhaps these witnesses’ stories vary slightly in details. Okay. I
would submit that two of the witnesses were in a car. They saw things from
a different perspective from each other, from Mr. Velasquez and his
daughter.
They didn’t see every part of it. They were very clear that at points
the cars were moving because the traffic was flowing down Stones River
Road, so they didn’t see everything that was happening.
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....
If [Defense Counsel] wants to talk about the tiny details here and there
that are different because different people saw it from a different perspective
or remember it in a slightly different way - - I would submit if all 12 of you
watched a similar thing happen, every one of you would tell that story just a
little bit differently. But to focus in [sic] on those small details that might be
different is what we often, in the business, refer to as smoke and mirrors.
….
So, to argue a distance that, I would submit to you, Ladies and
Gentlemen, was not the proof in evidence is smoke and mirrors in this case.
And he had the intent to permanently deprive the victim of his car.
....
I want to skip vandalism. I don’t know what Defense Counsel was
trying to say. Again, I’m going to go back to the smoke and mirrors about
the grille being on the front of the …truck.
Defense counsel then lodged an objection, and the following bench
conference was held.
[DEFENSE COUNSEL] Your Honor, I object to the State’s implication
to this jury that I am somehow . . . basically have lied to them, tried to – the
smoke and mirrors and everything, I let it go the first time. Now, we have
got it again. I object to the reference to me in that way.
THE COURT: Thank you, [State].
[STATE]: I never said that he lied. What I’m saying is that he is
skewing the facts in his favor. This is argument, Your Honor.
THE COURT: Thank you. [Defense Counsel]?
[DEFENSE COUNSEL]: Judge, that’s like saying I didn’t say you lied,
I just said you didn’t tell the truth. I mean, she’s making an implication and
impugning my integrity like I have gotten up here and done something wrong
for this jury. And that’s improper argument.
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[THE COURT]: Thank you. I would agree if she had said that you had
lied. But she didn’t say you lied. She said she didn’t know what you were
trying to say. And, so, I don’t find that to be an aspersion on your character
or on what was stated to the jury. I overrule the objection, would allow her
to continue the argument. Thank you.
....
[THE STATE] But the victims testified when they had to have this
damage replaced, it cost them $4,000. That is over $1,000, and less than
$10,000. They have no reason to lie about what it cost them to get their truck
fixed.
[DEFENSE COUNSEL]: Objection, Your Honor. That’s improper
vouching for a witness.
[THE COURT]: Thank you. Note your statement for the record and
allow [the State] to go forward. Go ahead, [State].
In review of this issue, we are mindful that a prosecutor’s role is “to refrain from
improper methods calculated to produce a wrongful conviction....” United States v. Young,
470 U.S. 1, 7, 105 S.Ct. 1038, 1042 (1985) (citing Berger v. United States, 295 U.S. 78,
88, 55 S.Ct. 629, 633 (1935)). However, the adversary system permits the prosecutor to
“prosecute with earnestness and vigor” id., and “while [she] may strike hard blows, [she]
is not at liberty to strike foul ones.” Id. Additionally, a criminal conviction is not to be
lightly overturned on the basis of a prosecutor’s comments standing alone, for the
statements or conduct must be viewed in context; only by so doing can it be determined
whether the prosecutor’s conduct affected the fairness of the trial. To help resolve this
problem, courts have invoked what is sometimes called the “invited response” or “invited
reply” rule. Id., 470 U.S. at 11, 105 S.Ct. at 1044. The “invited response” doctrine should
not be read as suggesting judicial approval or—encouragement—of response-in-kind that
inevitably exacerbates the tensions inherent in the adversary process. Rather, the issue is
whether the prosecutor’s “invited response,” taken in context, unfairly prejudiced the
defendant. Id., 470 U.S. at 12, 105 S.Ct. at 1044-45.
We acknowledge defense counsel’s concern regarding the use of the phrase “smoke
and mirrors” or “smoke screen” or variations thereof because it may imply that counsel
had not based his argument on fact or reason but instead intended to mislead the jury by
means of an artfully deceptive argument. This court has recognized that the “prosecution
is not permitted to reflect unfavorably upon defense counsel, or the trial tactics employed
during the course of the trial.” State v. Gann, 251 S.W.3d 446, 460 (Tenn. Crim. App.
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2007) (citations omitted). However, it is permissible for the prosecutor to comment during
closing argument on the strength and believability of the defense theories when the
defendants had, through their own witnesses and through cross-examination, offered
various explanations, implied and expressed, as to the State’s proof. See State v. Hall, 976
S.W.2d 121, 157-58 (Tenn. 1998) (finding no abuse of discretion in the trial court’s
overruling the defendant’s objections to the State’s closing comments such as “‘that’s not
a reasonable alternative,’” and “‘such a ridiculous position’”).
Applying the above law to this case, we are unable to conclude that the State’s
characterization of the defense’s case as “smoke and mirrors” rises to the level of
misconduct to require reversal of the Defendant’s convictions. State v. Jessie Dotson, No.
W2011-00815-CCA-R3-DD, 2013 WL 4728679, at *76 (Tenn. Crim. App. June 25,
2013), aff’d, 450 S.W.3d 1 (Tenn. 2014); State v. Demario Quintez Driver, No. M2021-
00538-CCA-R3-CD, 2022 WL 1284978, at *7 (Tenn. Crim. App. Apr. 29, 2022), appeal
denied (Sept. 29, 2022). A close review of the record shows that each reference was in
direct response to a portion of the defense closing argument and more of a criticism of the
strength of the defense theory, rather than a personal attack on the character of defense
counsel. See State v. Brandon Robert Vandenburg, No. M2017-01882-CCA-R3-CD, 2019
WL 3720892, at *52-53 (Tenn. Crim. App. Aug. 8, 2019) (concluding that the prosecutor’s
comments during rebuttal argument addressing the defense’s arguments as “red herrings”
did not breach a clear and unequivocal rule of law to rise to the level of plain error when
the comments were in response to defense counsel’s statements during closing arguments);
State v. Lance Burton, No. W2009-01875-CCA-R3-CD, 2010 WL 3244949, at *5 (Tenn.
Crim. App. Aug. 17, 2010) (addressing the prosecutor’s comments referencing defense
counsel’s arguments as “defense attorney tricks, defense attorney strategy”). Moreover,
even if the State’s multiple references to “smoke and mirrors” did constitute error, the proof
at trial showed that the Defendant essentially confessed to stealing the victim’s truck, and
the Defendant’s phone was found inside the victim’s truck. Because there was
overwhelming proof of the Defendant’s guilt, any error in the State’s improper reference
to “smoke and mirrors” cannot be said to have affected the outcome of the case to the
prejudice of the Defendant. Accordingly, the Defendant is not entitled to relief.
The Defendant next argues that the State engaged in improper vouching by saying
the victim “had no reason to lie” about the money he paid to repair his truck. Certainly, a
lawyer should not assert his or her personal opinion as to the credibility of a witness or as
to the accused’s guilt or innocence. State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim.
App. 1999) (citing State v. Henley, 774 S.W.2d 908, 911 (Tenn. 1989)). In this context,
“expressions by the prosecutor are a form of unsworn, unchecked testimony and tend to
exploit the influence of the prosecutor’s office and undermine the objective detachment
which should separate a lawyer from the cause for which [she] argues.” Goltz, 111 S.W.3d
at 6 (citing Standards § 5.8(b) Commentary b). The “witnesses must stand on their own,”
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and this prohibition “prevents the advocate from personally endorsing or vouching for” a
witness, ensuring that “the cause ... turn[s] on the evidence, not on the standing of the
advocate.” Id. Here, we understand the Defendant’s position, because the jury very well
could have attributed undue credibility to the victim-witnesses based on the State’s
comment. However, based on our previous assessment of the proof, we are unable to
conclude that the isolated improper comment affected the outcome of the case to the
prejudice of the Defendant. Accordingly, the Defendant is not entitled to relief.
CONCLUSION
Based on the foregoing authorities and analysis, the judgments of the trial court are
affirmed.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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