State of Tennessee v. Morris Wayne Adcock

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 16, 2013 Session
STATE OF TENNESSEE v. MORRIS WAYNE ADCOCK
Appeal from the Criminal Court for Davidson County
No. 2009D3291 Monte D. Watkins, Judge
No. M2012-01631-CCA-R3-CD - November 25, 2013
Defendant-Appellant, Morris Wayne Adcock, was indicted by a Davidson County Grand Jury
for aggravated assault and domestic assault. A jury convicted him of the lesser included
offense of simple assault and the charged offense of domestic assault, Class A
misdemeanors. The trial court merged the simple assault conviction with the domestic
assault conviction and sentenced Adcock to eleven months and twenty-nine days in the
county jail. On appeal, Adcock argues: (1) the trial court erred in failing to rule on the
defense’s objection to one of the prosecutor’s questions to Joshua Jernigan; (2) the State
committed prosecutorial misconduct; (3) the cumulative effect of the errors entitles him to
relief; and (4) his sentence is excessive. Upon review, the judgment of the trial court is
affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R. and R OGER A. P AGE, JJ., joined.
G. Frank Lannom and Melanie R. Bean, for the Defendant-Appellant.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Victor
S. (Torry) Johnson, III, District Attorney General; and Hugh T. Ammerman, III, Assistant
District Attorney General, for the Appellee, State of Tennessee.
OPINION
Trial. Robin G. Adcock, the victim, testified that she and her husband Morris Wayne
Adcock, the Defendant-Appellant, attended a biker event called “Harley Drag” at the Union
Hill drag strip in rural Davidson County on May 17, 2008. The victim said that she and
Adcock attended the event together even though they were separated. At approximately 9:30
p.m., Adcock’s good friend, Joshua Jernigan, arrived at the event. The victim stated that
Jernigan’s mother and Adcock had gone to school together, and Adcock and Jernigan were
almost like family. At Adcock’s request, Jernigan had brought moonshine with him to the
event. Although Adcock and the victim had been drinking beer earlier in the night, they
began drinking the moonshine. When Adcock began flirting with the lead singer of the band,
the victim got upset, and she and Adcock began to argue. Around 11:30 p.m., the band
stopped playing, and Adcock and the victim walked to their campsite, and Jernigan drove
Adcock’s motorcycle to the campsite because Adcock was too intoxicated to drive it himself.
Jernigan then walked back and joined Adcock and the victim as they walked to their
campsite. On their way, they approached a group of three women and two men whom they
did not know, and the victim, telling the women in that group that it was Jernigan’s birthday,
convinced two of the women to flash their breasts. At that point, Adcock showed the women
his tattoo, which was located in his genital area, and one of the women “grabbed him.” The
victim told the woman “[n]ot to touch [her] husband[,]” and they exchanged words. The
victim stated that no physical fight occurred and that there were no threats from this woman
or her group about finding her later or hurting her. Adcock intervened during this verbal
altercation, and the victim and Adcock “fuss[ed]” at each other on the way back to the
campsite. The victim stated that she never saw the woman from the incident or the people
with her again.
When the victim, Adcock, and Jernigan arrived at the campsite, Adcock went inside
the tent. The victim said she stayed outside to talk to Jernigan so Adcock would fall asleep
because she did not want to fight with him anymore. The victim and Jernigan talked
approximately three hours before Jernigan left to sleep in his vehicle and the victim entered
the tent she shared with Adcock. Just before Jernigan got in his vehicle to sleep, Adcock
came out of the tent and told the victim she needed to go to bed.
The victim stated that when she entered the tent, Adcock began arguing with her
again. She told Adcock that he should go back to sleep and that she would leave the event
the next morning. Adcock continued to argue with the victim and began making negative
comments about her daughter. When the victim tried to put on her boots to leave, Adcock
grabbed one of them, refused to give it to her, and informed her she was not going to leave.
When the victim reached behind Adcock to get her boot, he grabbed a loaded .22 caliber
revolver from his boot and threw it at her, hitting her in the arm. The victim stated that
Adcock also had a knife with him that night, although he did not threaten her with it. When
the victim tried to reach her boot again, Adcock hit her in the temple with his fist, which
“dazed” her. Adcock hit the victim a second time, which left her unconscious. When the
victim regained consciousness, she was lying down, and Adcock was on top her and hitting
her. The victim was unsure of how many times Adcock hit her while she was unconscious
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or how long she was unconscious. She pushed Adcock off of her, crawled out of the tent,
and put on her boot. She yelled at Adcock because she was bleeding, but she was unsure if
anyone heard her because the area was noisy from the generators on the recreational vehicles
parked nearby and the music coming from other tents. She stated that most of the people
close to Adcock’s tent were asleep at the time that Adcock assaulted her.
The victim woke up Jernigan, told him that Adcock had hit her, and informed him that
she was leaving. She stated that Jernigan was only a few feet away from their tent. She said
she was sure that Jernigan saw that she was bleeding. Jernigan asked the victim if she was
okay, and she said, “No, I’m leaving.” When Jernigan tried to get her to stay, she refused.
The victim got on her motorcycle and headed to the front gate to leave. However, the
security guard at the gate, who noticed that she was bleeding from her nose and mouth, said
she was “in too bad of a shape to be riding” and detained her as he called 911. When the
police arrived, she told them that Adcock had beaten her and had a gun, and they asked her
where Adcock’s tent was located. The victim said she thought that Jernigan had walked up
to the front gate by that time because when she started having trouble breathing, Jernigan
showed the police where Adcock’s tent was located.
The victim stated that she was transported by ambulance to the hospital in the early
hours of the morning. Jernigan met her at the hospital and told her that he was going to get
her truck and a trailer to pick up her motorcycle. She said that Jernigan did not talk to her
about what happened, although she saw him talking to an officer at the hospital. While at
the hospital, photographs were taken of the victim’s bruises on her forehead, nose, eye, cheek
and arm, where Adcock had thrown the gun at her, as well as of the blood in her hair. These
photographs were entered into evidence at trial. She stated that she also had bruising on her
breastbone from the incident.
The victim stated that she was released from the hospital the morning of May 18,
2008. Approximately two days after the incident, the victim reported to the domestic
violence division of the police department, where additional photographs of her injuries were
taken. These photographs, which were also entered into evidence, showed that she had a
black eye, a bruise on her arm, a knot and swelling on her forehead, and a bruise on her left
thigh. At trial, the victim identified the .22 caliber revolver that Adcock had thrown at her
and the knife that Adcock had in his possession on the night of the incident.
The victim stated that she filed for divorce the Monday after she was released from
the hospital and that she testified at Adcock’s preliminary hearing shortly thereafter on May
22, 2008. Prior to testifying at the preliminary hearing, she spoke to the victim-witness
coordinator in the district attorney’s office. She also testified at a court proceeding in early
2011 regarding this case.
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Officer Anthony Chandler of the Metropolitan Nashville Police Department testified
that he was one of the officers who responded to the call involving the victim at the “Harley
Drag” event. Upon arriving at the front gate, he observed the victim, who was upset and
crying, lying on the ground and bleeding from her nose and mouth. He also saw that the
victim had a knot on her head. After talking to the victim about what happened, Officer
Chandler concluded that an assault had occurred. The victim informed the police that
Adcock was armed and intoxicated. Officer Chandler and two other officers began looking
for Adcock and found the tent with Adcock asleep inside. The officers awakened Adcock,
who appeared intoxicated, and arrested him. When the officers took him into custody, they
recovered a pocket knife from Adcock’s person. Officer Chandler observed what he
believed to be blood on the outside entrance of the tent and on a pillow and sleeping bag
inside the tent. He also found a .22 caliber Derringer handgun in a sleeping bag at the
entrance of the tent.
Officer Chandler said he first saw Jernigan, who was sitting in his parked vehicle
asleep, when he and the other officers initially approached Adcock’s tent. The officers spoke
with Jernigan, who helped them find Adcock’s tent. Jernigan told the officers that he knew
nothing about the victim’s assault and had not heard anyone yelling. When Jernigan told the
officers he wanted to check on the victim, they directed him to the front gate. Officer
Chandler said he did not observe any injuries on Adcock at the time of his arrest and did not
observe any blood on Adcock’s hands or clothes. He stated that the other individuals camped
close to Adcock’s tent appeared to be asleep and that the few people he was able to contact,
who were fifteen to twenty feet away from Adcock’s tent, had not heard a disturbance. He
stated that he did not recall seeing any groups of people partying nearby.
When Officer Chandler went to the hospital to talk to the victim, he saw Jernigan
again. He stated that Jernigan was in the room when the victim gave him a detailed statement
regarding the incident and that he had Jernigan sign a domestic violence supplement form
at the hospital. Officer Chandler said Jernigan never indicated that the victim’s statement
to him was not true, that he did not believe the victim’s allegation, or that he believed
someone else had assaulted the victim. He remembered Jernigan stating, “I can’t believe I
didn’t hear it.” Officer Chandler asserted that just because Jernigan did not hear the assault
did not mean that the assault had not occurred. He acknowledged that there were no
witnesses to the assault other than the victim and Adcock.
Officer Thomas Smith of the Metropolitan Nashville Police Department testified that
he also responded to a domestic violence call at the racetrack on May 18, 2008. Upon his
arrival, he noticed that the victim had a swollen face and blood coming from her nose. He
remembered that the victim had to show the officers where Adcock’s tent was located and
that he and the other officers encountered Jernigan in a vehicle close to Adcock’s tent.
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Officer Smith stated that when they arrived at Adcock’s tent, Adcock was asleep as were all
of the people camping nearby. He stated that he did not recall any other parties going on at
4:00 a.m., the time that he arrested Adcock. He acknowledged that the only person who
indicated that Adcock was responsible for the assault was the victim.
Joshua Jernigan, a former Marine, testified that he had known Adcock his entire life
and that his mother and Adcock were friends. Jernigan said he parked his vehicle
approximately ten feet away from Adcock’s tent the night of the event. When he and Adcock
offered the lead singer in the band some moonshine, the victim angrily confronted the singer,
but there was no physical altercation between the women. He said the victim later pushed
Adcock out of the way near the stage because she was angry with him. After the band
stopped playing, he drove Adcock’s motorcycle back to the campsite because Adcock was
too intoxicated to drive it back himself. Jernigan walked back to Adcock and the victim and
saw that they were near another group of people. He stated that a confrontation occurred
between the victim and a woman in this other group after Adcock showed one of the women
his tattoo. Jernigan stated that the victim behaved “very aggressiv[ely]” toward the woman,
and the victim and the woman were “hollering and cussing, fixing to get into a little brawl
there. And then the other [five or six] ladies who [were] friends with the lady that was
involved in it, they all, kind of, started hollering and cussing . . . .” Jernigan stated that he
and Adcock split up the confrontation, and this group went on their way. He acknowledged
that Adcock and the victim were arguing with one another after this incident and that his goal
was to keep Adcock and the victim from getting in a physical confrontation.
Jernigan said that he, Adcock, and the victim walked to the top of the hill where
Adcock’s tent was located. Adcock went inside the tent to sleep, and Jernigan and the victim
sat in chairs in front of the tent and talked for a couple of hours. Jernigan said that when he
decided to go to bed, there was a party going on approximately fifty feet away because he
could hear the music playing and could see the shadows of people dancing beyond a van.
The victim asked him if he wanted to go to the party. When he declined, the victim walked
in the direction of the party. At that point, defense counsel asked Jernigan if he knew where
the women who were involved in the earlier incident over the tattoo were, and he stated that
he thought they were at the party the victim walked toward, but he was not sure. Jernigan
said he got into in his vehicle with the passenger window down and tried to sleep. He
explained that he put the window down because he did not want the victim coming back and
getting into a fight with Adcock.
Approximately thirty minutes later, Jernigan “heard a disturbance behind [his] truck.”
He stated, “I got out to see what it was. And it was [the victim] trying to leave on her bike.
And I took the keys out of her bike [and] told her she was not leaving on it.” He stated that
the victim was not injured at this time and that this was the first time he had seen her since
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she had walked in the direction of the party. He said the victim never informed him that she
had been beaten or hurt by Adcock. Jernigan said he took the victim’s keys because she was
intoxicated at the time, and he did not want her to ride on the road and get hurt. The victim
sat there for a minute before telling him that she had to use the restroom. She walked down
to the bottom of the hill in the opposite direction of the party, and Jernigan returned to his
vehicle. Jernigan said that he did not see the victim again until the police knocked on his
window, and he observed that the victim had been injured. He said that he never saw Adcock
come out of the tent, that he never heard a fight coming from the direction of Adcock’s tent,
and that the only disturbance he heard was when the victim attempted to leave on her
motorcycle. He talked to the officers, and they asked him to drive the victim to the top of the
hill where the ambulance was going to arrive. On the way, Jernigan asked the victim where
her motorcycle was located, and she told him that it was at the front gate. Jernigan stated that
he did not know how she had gotten her motorcycle there, since he had taken her key. He
later retrieved the victim’s motorcycle and went to the hospital to check on her.
Jernigan said that when the police arrived with the victim he could see that the victim
was “[b]eaten and bloodied up pretty good. Still intoxicated. Just pretty bad.” He said he
did not believe that a fight or brawl could have occurred in Adcock’s tent without him
hearing it because he was only a few feet away. He also said he did not know who injured
the victim; however, he asserted that he never saw Adcock hurt the victim. Jernigan stated
that the only weapon he had seen in Adcock’s possession was a .32 caliber Russian semi-
automatic pistol and that he had never seen Adcock with the .22 caliber revolver found in the
tent the night of his arrest.
Jernigan acknowledged that he was present when the victim spoke to an officer about
what happened but asserted that he did not pay attention to what she had said because he was
talking to another officer. He also acknowledged that he had been falling in and out of sleep
that night because noises kept awakening him. However, he said he had not yet fallen asleep
when he heard the victim trying to get on her motorcycle. He admitted that motorcycles had
been driving through the campsite all night but claimed that they were idling through the area
so as not to disturb anyone. Jernigan admitted that he knew Adcock had been charged with
assaulting the victim shortly after Adcock’s arrest. He also admitted that he had been in
contact with Adcock’s family after his arrest and had talked to Adcock once on the phone
while he was in jail. He said that he stayed in touch with Adcock after his arrest and that his
mother and Adcock were very close. Jernigan stated that he was not aware that Adcock had
a preliminary hearing and that he had not testified at Adcock’s preliminary hearing. He
maintained that it was not possible for Adcock to have assaulted the victim, but he
acknowledged that Adcock had been angry with the victim the night of the assault.
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Penny Mosier, Adcock’s aunt, stated that the victim occasionally stayed with her when
the victim and Adcock were “spatting.” She asserted that the victim did not have a reputation
for honesty and truthfulness and that she had personally observed the victim failing to tell the
truth. However, Mosier was unable to give specific instances where the victim had been
dishonest and asserted only that the victim often declined to talk to her about her marital
problems with Adcock.
Sentencing Hearing. At the beginning of the hearing, the State introduced three
warrants charging Adcock with domestic violence, one warrant charging him with assault
on a police officer, and one warrant charging him with evading arrest. In addition, the State
introduced certified judgments for Adcock’s convictions for resisting arrest and driving while
intoxicated and introduced photographs depicting the victim’s injuries from the assault in this
case. The State informed the trial court that on March 5, 2010, Adcock was charged with
domestic assault on an individual other than the victim.
The victim testified that she had dated Adcock for several years before they were
married. Following this incident, she filed for divorce from Adcock and ultimately agreed
to several of Adcock’s demands in order to bring the divorce to a close. The victim stated
that prior to the incident in this case, Adcock had committed several other assaults. On
March 9, 2006, she saw Adcock push his daughter. When the police served the arrest
warrant on Adcock for assaulting his daughter, he fought with the police. Although Adcock
was charged with assaulting his daughter, assaulting a police officer, and resisting arrest
regarding this incident, he pled guilty to three counts of resisting arrest, and the remaining
charges were dismissed.
On August 11, 2006, the victim stated that Adcock knocked her unconscious, and she
was taken to the hospital. She said that when the police first arrived, there was blood on her
face, on the kitchen table and floor, and on two telephones in the house. As a result of this
assault, she received a laceration above her ear and an injury to her mouth. Adcock was
charged with domestic assault, but the charge was later dismissed because she did not pursue
the case. She stated that Adcock was charged with evading arrest when the arrest warrant
for the August 11, 2006 domestic assault was served on him.
On December 30, 2004, Adcock returned from his grandmother’s funeral upset, and
he began drinking. When she and Adcock later got into an argument, he began “beating on”
her and “throwing [her] around.” The victim said that when the police arrived, they noticed
scratch marks on her face and a knot on her head and charged Adcock with domestic assault.
Because she did not pursue this charge, it, too, was dismissed.
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The victim said that Adcock had assaulted her on other occasions, although no charges
were ever brought against him. Sometime in 2005, Adcock slapped her in the mouth while
they were driving back from Huntsville. The victim stated that Adcock had hit her in the
past, and she had not pressed charges because she loved him. The victim said that she
decided to press charges against Adcock in this case and had testified against him in two
trials because the first trial had resulted in a hung jury. The victim said that Adcock admitted
to her that he had beaten a man in Wilson County with a metal baseball bat. She did not
believed that Adcock was ever convicted of this offense. In addition, she stated that Adcock
admitted that one of his ex-wives was “mouthy,” had cheated on him, and that he “beat her.”
The victim read a prepared statement during the sentencing hearing. In it, she stated
that Adcock had injured her several times and that Adcock’s aggressive behavior had
negatively affected her children because they had observed his abuse firsthand. She said that
her daughter did not trust men after witnessing Adcock’s assaults on her. The victim stated
that Adcock had taken away her money, house, and pride and had prevented her from trusting
other people. She asked the court to impose the maximum sentence for Adcock so that he
would not injure any other women.
The defense introduced a letter from the Wilson County Circuit Court Clerk stating
that there were no records for two of Adcock’s convictions, the March 5, 2010 domestic
assault and the November 16, 2009 offense. The State asserted that it would not object to
Adcock showing that these charges had been expunged. In addition, the defense introduced
a letter from one of Adcock’s ex-wives, Deanna Casteal, who stated that she and Adcock
were married for six years and had been friends for thirty-three years and that Adcock never
behaved aggressively toward her during their marriage.
Kenneth A. Stacey testified that he first met Adcock at work and had known him for
fifteen years. He said that Adcock owned his own business, Pride Machine, and also worked
at Haskell Steel. Stacey stated that Adcock was a reliable, hard worker and a loyal friend.
He also stated that Adcock had ridden his motorcycle in several charity bike rides and had
grown out his hair to donate it to charity.
William Ray Adcock, the Defendant-Appellant’s cousin, testified that his cousin was
“a good man” and “a hard worker” with “a big heart.” He stated that his cousin had
sponsored little league teams for him and had stayed with him and his ailing mother for two
weeks while his mother was receiving hospice care. He also stated that his cousin had
donated his hair to Locks of Love, a charity for children with cancer. He said Adcock had
helped him out many times in the past and had ridden his motorcycle in numerous charity
rides. He stated that he believed his cousin could be rehabilitated to be a productive member
of the community.
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At the conclusion of the sentencing hearing, the trial court sentenced Adcock to eleven
months and twenty-nine days in the county jail. On July 12, 2012, Adcock filed a motion for
a reduction of his sentence, a motion for new trial, and a notice of appeal. On November 13,
2012, Adcock filed an amended motion for new trial. On November 28, 2012, the trial court
entered an order denying the motions for new trial.
ANALYSIS
I. Failing to Rule on Objection. Adcock argues that the trial court erred in failing
to rule on his objection when the State asked Joshua Jernigan if he had testified at Adcock’s
preliminary hearing. Specially, he claims that the court’s failure to rule on the objection
“gave the impression there was no merit to the objection.” The State responds that Jernigan
answered the question before the court had an opportunity to rule on the objection and that
defense counsel failed to make a motion to strike the testimony. The State also asserts that
Adcock failed to establish that Jernigan’s testimony should have been excluded as irrelevant.
During cross-examination, the State asked the following questions of Jernigan:
Q. Were you in contact with Mr. Adcock after he was arrested?
A. His family I was, yes, sir.
Q. His family and you were; right?
A. Yes, sir.
Q. Did you go visit him wherever he was?
[Defense Counsel]: Objection, relevance.
[The State]: Judge, it is totally relevant.
The Court: You can ask if he visited, yes.
The Witness: No, I didn’t.
Q. You didn’t. Did you speak to him on the phone?
A. Once.
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Q. Okay. Were you aware of the fact that he had an upcoming preliminary
hearing?
A. No.
Q. You weren’t?
A. No.
Q. Nobody talked to you about that?
A. No.
Q. You stand before this jury today to say that there is no way your friend,
Morris Wayne Adcock, could have done these things; right?
A. (Responds in the affirmative).
Q. And the truth is the truth and it never changes; fair to say?
A. Yes, sir.
Q. So, you must have felt strongly that way right when he got arrested?
A. Yes, sir.
Q. It’s not something you’ve developed over time; is it?
A. No, sir.
Q. Did you go testify at his preliminary hearing?
[Defense Counsel]: Objection to relevance, Your Honor.
The Court: Well, either he testified or he didn’t.
[Defense Counsel]: Your Honor, there are many reasons why a person
would or would not be called from an attorney’s
point of view, and that would not be probative of
his testimony today.
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The Court: Right. I understand that.
[The Witness]: No, sir.
We agree with the State that the court was unable to rule on the defense’s objection
prior to Jernigan’s response that he had not testified at the preliminary hearing. In any event,
it is clear that the prosecutor was attempting to discredit Jernigan’s testimony by establishing
that he failed to appear at his preliminary hearing. Although we agree that Jernigan’s
presence at the preliminary hearing was of marginal relevance, we fail to see how the above
exchange was prejudicial in light of the facts and circumstances of this case. Accordingly,
Adcock is not entitled to relief on this issue.
II. Prosecutorial Misconduct. Adcock argues that the prosecutor’s “continuing
pattern of misconduct” compromised his due process right to a fair trial. He references
specific comments made by the prosecutor and claims that these comments were so
prejudicial that he is entitled to a new trial. The State responds that Adcock has failed to
establish that the prosecutor’s statements were so improper as to affect the outcome of his
trial. After reviewing the record, we conclude that although some of the prosecutor’s
comments were improper, they were not so egregious that they affected the jury’s verdict to
Adcock’s detriment.
Prosecutorial misconduct does not constitute reversible error absent a showing that
it has affected the outcome of the trial to the prejudice of the defendant. State v. Bane, 57
S.W.3d 411, 425 (Tenn. 2001) (citing Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)). In
order to be entitled to relief on appeal, the defendant must “show that the argument of the
prosecutor was so inflammatory or the conduct so improper that it affected the verdict to his
detriment.” State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996) (citing
Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)). The trial court has substantial
discretion in controlling the course of arguments and will not be reversed unless there is an
abuse of that discretion. State v. Bush, 942 S.W.2d 489, 516 (Tenn. 1997).
The Tennessee Supreme Court has consistently held that “‘closing argument is a
valuable privilege that should not be unduly restricted.’” State v. Reid, 164 S.W.3d 286, 320
(Tenn. 2005) (quoting Bane, 57 S.W.3d at 425); see State v. Cauthern, 967 S.W.2d 726, 737
(Tenn. 1998). Closing argument gives each party an opportunity to persuade the jury of their
theory of the case, see 11 David L. Raybin, Tennessee Practice: Criminal Practice and
Procedure § 29.2, at 97 (2008), and to highlight the strengths and weaknesses in the proof
for the jury. State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008) (citations omitted).
“[P]rosecutors, no less than defense counsel, may use colorful and forceful language in their
closing arguments, as long as they do not stray from the evidence and the reasonable
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inferences to be drawn from the evidence, United States v. Mullins, 446 F.3d 750, 759 (8th
Cir. 2006), or make derogatory remarks or appeal to the jurors’ prejudices, State v. Reid, 164
S.W.3d at 320-21.” Banks, 271 S.W.3d at 131. Moreover, we recognize that “[c]losing
arguments in criminal cases have a ‘rough and tumble quality’ about them, State v. Skakel,
276 Conn. 633, 888 A.2d 985, 1060-61 (2006), because they are traditionally the one place
in the trial where the lawyers are given the greatest leeway in their manner of expression.”
Banks, 271 S.W.3d at 131 (citing 6 Wayne R. LaFave et al. Criminal Procedure § 24.7(b),
at 456-57 (3d ed. 2007)).
Notwithstanding this leeway, a prosecutor’s comments during closing argument “must
be temperate, predicated on evidence introduced during the trial, relevant to the issues being
tried, and not otherwise improper under the facts or law.” State v. Middlebrooks, 995
S.W.2d 550, 557 (Tenn. 1999). Additionally, a prosecutor’s duty to uphold justice
necessarily limits the leeway given to him or her in closing argument:
The [prosecutor] is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in
a criminal prosecution is not that it shall win a case, but that justice shall be
done. As such, he is in a peculiar and very definite sense the servant of the
law, the twofold aim of which is that guilt shall not escape or innocence suffer.
He may prosecute with earnestness and vigor–indeed, he should do so. But,
while he may strike hard blows, he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just
one.
It is fair to say that the average jury, in a greater or less degree, has
confidence that these obligations, which so plainly rest upon the prosecuting
attorney, will be faithfully observed. Consequently, improper suggestions,
insinuations, and, especially, assertions of personal knowledge are apt to carry
much weight against the accused when they should properly carry none.
Berger v. U.S., 295 U.S. 78, 88 (1935).
This court has recognized that there are five general categories of prosecutorial
misconduct:
1. It is unprofessional conduct for the prosecutor intentionally to misstate
the evidence or mislead the jury as to the inferences it may draw.
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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 the guilt of the defendant. See State v. Thornton, 10 S.W.3d 229,
235 (Tenn. Crim. App. 1999); Lackey v. State, 578 S.W.2d 101, 107
(Tenn. Crim. App. 1978); Tenn. Code of Prof’l Responsibility DR 7-
106(c)(4).
3. The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury. See Cauthern, 967 S.W.2d at 737;
State v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).
4. The prosecutor should refrain from argument which would divert the
jury from its duty to decide the case on the evidence, by injecting issues
broader than the guilt or innocence of the accused under the controlling
law, or by making predictions of the consequences of the jury’s verdict.
See Cauthern, 967 S.W.2d at 737; State v. Keen, 926 S.W.2d 727, 736
(Tenn. 1994).
5. It is unprofessional conduct for a prosecutor to intentionally refer to or
argue facts outside the record unless the facts are matters of common
public knowledge.
State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citing American Bar Association,
Standards Relating to the Prosecution Function and the Defense Function §§ 5.8-5.9
Commentary (ABA Project on Standards for Criminal Justice, Approved Draft 1971)).
In determining whether the prosecutor’s improper conduct could have affected the
verdict to the prejudice of the defendant, this court should consider the following factors:
1. The conduct complained of viewed in context and in light of the facts
and circumstances of the case.
2. The curative measures undertaken by the court and the prosecution.
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other errors in
the record.
5. The relative strength or weakness of the case.
Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see Goltz, 111 S.W.3d at 5-6.
Adcock argues that all five Judge factors show that the prosecutor’s comments affected the
verdict to his prejudice.
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A. The Prosecutor’s Question to Joshua Jernigan. In connection with his first
issue, Adcock argues that the prosecutor’s question to Joshua Jernigan, about whether he
testified at Adcock’s preliminary hearing, constituted an improper vouching for the
credibility of the victim and implied that Adcock was guilty by referencing his preliminary
hearing. Here, we conclude that Adcock has waived this issue because he objected to the
prosecutor’s question on the ground of relevance rather than on the ground of prosecutorial
misconduct. A party on appeal is bound to the ground of the objection it asserted at trial.
See State v. Schiefelbein, 230 S.W.3d 88, 129 (Tenn. Crim. App. 2007) (citing State v.
Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994); Tenn. R. Evid. 103(a)(1)).
Accordingly, Adcock is not entitled to relief on this issue.
B. The Prosecutor’s Comments Unobjected to By the Defense. Adcock also
asserts that several statements made by the prosecutor during his rebuttal closing argument
constituted prosecutorial misconduct even though they were not objected to by the defense.
In response, the State asserts that Adcock has waived these issues because he failed to make
a contemporaneous objection at trial.
In his brief, Adcock argues that the prosecutor improperly vouched for the victim’s
credibility and personally commented on the veracity of the other witnesses when he made
the following statements in his rebuttal closing argument:
1. “We’ll talk about everything that an individual has to go through,
including Ms. Adcock, to see a matter like this through. She is
consistent about material facts[,] and there is no big lie in this case.”
2. “Joshua Jernigan, I think, in a total baseless way, said he
believed that [the people responsible for the victim’s assault were] the
women that they had contact with in the tattoo incident earlier that day,
but he doesn’t know for sure. I don’t know why he would even say
that. Because, apparently, all he saw was shadows and heard music.
Says that [the victim] said she’s going off to party. And then she comes
back and is trying to get on her motorcycle and go uninjured.”
3. “[The victim] did testify that she spoke with the victim witness
coordinator, a stranger. She testified that she testified at the
preliminary hearing. Didn’t know anybody there. She testified, again,
in January of 2011 to fourteen different strangers. Over, and over
again, folks.
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Now, she stands before fourteen final strangers for days of this
jury trial that takes place–that’s not right–about four years after the fact.
Six occasions she’s talking about [the incident of] domestic
abuse [in this case].
Remember the one juror who made it in here, I thought had
extensive personal experience with domestic violence, being a domestic
violence survivor, was floored that no one seemed to think that it was
a h[]ard thing to do to accuse someone who’s abusing you.
She’s disclosed it numerous times to people she doesn’t know.
She’s suffered separation from her prized motorcycle, went to the
hospital. Four years. That’s a lot of work. When the divorce is done,
ladies and gentlemen, when there is no more contact, that’s a lot of
work, just in the hope that you can recognize her as a victim who
deserves justice in this case.”
4. “And all of that off-colored stuff, y’all, is leading up to the moment that
we have to live in as we analyze the case. The moment where
interaction between that man and my victim turned violent. The
moment where she was struck with a thrown pistol, the moment where
his fists hit her face. That’s the moment that’s important. Don’t get
lost in the lead up.”
Adcock also argues that “the prosecutor made numerous prefatory statements to set
up his rebuttal argument,” which included the following:
“So, what do you do [for a defense theory]? You abuse the plaintiff.
And for those of you who made it–I suppose there have got to be a few who
were civil jurors at one time. You have plaintiff and defendant in a civil case.
You’ve got the State and the defendant in a criminal case. The State,
generally, and its witnesses could be considered the plaintiff. And [defense
counsel] has tried his best to cast Government, police and the State’s victim in
a negative light.”
....
“All right. And why should you believe [the victim]? How did she
disclose this whole thing? I mean, if she’s lying, then there’s got to be a
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reason, right? Why is she lying about this? And we’ll talk about how many
times she’s had to come to Court and stand up to the person who’s committed
a crime against her. But why would she do this? The woman scorned defense,
I suppose; that–I don’t even know. She filed for divorce. There was a lot of
talk earlier about divorce this and divorce that, and then that, kind of,
evaporated. The proof was, uncontradicted, that she just acquiesced [to
Adcock’s demands in the divorce] in the end to be done with it.”
Adcock argues that these “prefatory” comments “place[d] the police[,] the
prosecutor[,] and the victim in a cohesive position of trustworthiness and justness in the
cause.” In addition, he asserts that the prosecutor made additional comments, highlighting
the fact that the victim had never met the security guard, police officers, emergency medical
technicians, hospital staff, and members of the district attorney’s office before she told them
about the details of her assault, which also bolstered the victim’s credibility.
As an initial matter, we agree with the State that the defense’s failure to make
contemporaneous objections to the aforementioned comments at trial amounted to waiver of
these issues. See Tenn. R. App. P. 36(a); Tenn. R. Evid. 103(a)(1). However, in his motion
for new trial and his amended motion for new trial, Adcock averred that the prosecutor
engaged in “improper closing argument in both visual, written and verbal form, thereby
committing prosecutorial misconduct, by expressing his personal belief and opinion, the
opinion of the office of the District Attorney Gerneral and of the investigating agency, the
Metropolitan Police Department as to the truth, veracity and credibility of [the victim].”
While his motion for new trial only generally cites to the beginning page of the “transcript
of closing statements,” we conclude that these issues have been properly preserved for
appellate review. State v. Frazier, 683 S.W.2d 346, 351-352 (Tenn. Crim. App. 1984).
In regard to this issue, we begin by recognizing that a defendant’s failure to object to
a prosecutor’s comments during closing argument rarely results in a reversal of the
conviction. The Tennessee Supreme Court has stated:
Unobjected to closing arguments warrant reversal only in exceptional
circumstances. United States v. Smith, 508 F.3d 861, 864 (8th Cir. 2007).
Accordingly, like the United States Court of Appeals for the Eighth Circuit,
“[w]e bear in mind that fleeting comments that passed without objection
during the rough-and-tumble of closing argument in the trial court should not
be unduly magnified when the printed transcript is subjected to painstaking
review in the reflective quiet of an appellate judge’s chambers.” United States
v. Mullins, 446 F.3d at 758.
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Banks, 271 S.W.3d at 132 n.30. As an initial matter, in our view, none of the above
comments were improper. Moreover, the trial court instructed the jury that arguments of
counsel were not evidence, which was reiterated during the State’s rebuttal closing argument.
Furthermore, after viewing the prosecutor’s conduct under the factors outlined in Judge, we
are unable to conclude that any of the prosecutor’s above comments affected the verdict to
Adcock’s prejudice. Adcock is not entitled to relief on this issue.
C. The Prosecutor’s Comments Objected to by the Defense. Third, and most
importantly, Adcock claims some of the prosecutor’s comments, to which he did object
during the State’s rebuttal closing argument, amounted to an improper vouching for the
credibility of the State’s witnesses, the second category of prosecutorial misconduct under
Goltz. During rebuttal closing argument, the prosecutor asserted that the defense’s plan was
to try to cast the victim in a negative light and claim that there was a lack of evidence
presented by the State at trial. The prosecutor then discussed whether the defense’s
allegation that the victim was lying about Adcock assaulting her was a reasonable one. He
noted the numerous times the victim had come to court to face her ex-husband regarding
these charges. He also talked about the fact that the victim did not call the police following
the assault and that the handgun she told police Adcock threw at her was found in his tent.
The prosecutor continued:
[A] theme of the defense is, does that support or contradict [the victim’s story].
In opening statement, [defense counsel] said that there won’t be one thing that
supports [the victim’s] story, the State’s theory of the case. “You’re not going
to hear one thing that supports it.” Ladies and gentlemen, that was not
accurate.
So, [the victim] goes to the security guard, she[] goes to Mr. Jernigan.
And I’ll talk about Mr. Jernigan getting up, staying in his car, or whatever.
But, then, she goes, encounters security and they say, “Look you need help.”
They call an ambulance and she’s taken to the hospital.
In the process she has convinced police, security guards, everyone who
has come in contact with her that–
[Defense counsel]: Your Honor, I must object at this time. May I be heard
by the Court?
The Court: Objection to what?
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[Defense counsel]: Object to the words that are on the screen at this time,
which need to be placed into the record, which places
forward an indication that the prosecutors believe [the
victim’s] story, which is totally improper and
inappropriate in this closing argument and against the
rules of evidence.
[The State’s PowerPoint presentation slide that was being shown at the time
of the defense’s objection stated the following: “If she’s not telling the truth,
she’s put on one heck of a performance–effectively fooling police and
prosecutors with the sophistication of a CIA field operative–just to hurt Morris
Adcock.”
[The State]: Judge, if I may respond, I would like to.
In opening statement–number one, first and foremost, it’s
the same slide that existed, that [defense counsel] has
seen before, through no objection. Number two, in
opening statement the defense stood and said, “If you
believe, as I do, that someone is telling a lie,” and now
here we stand.
The Court: Well, just let me simply say this: This is closing
argument. This is not proof in the case. This is not
evidence. It is closing argument, that’s all it is. Take it
for what it is.
[Defense counsel]: Your Honor, following your ruling, can we make sure
after this trial that this, what has been shown to the jury,
is placed into the record, please?
The Court: Sure.
[Defense counsel]: Thank you, very much.
[The State continued its rebuttal closing argument]:
Mr. Adcock was arrested and charged in this case. Don’t think the
police would do that unless they felt they had cause to do so. Don’t think–I
mean, maybe, you believe that we come here and try cases just to try cases. I
don’t know. Anyway.
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People are helping [the victim] and the process is going forward
representing the interest of [the victim] because there is a belief that this is a
case that needs addressing.
[Defense counsel]: Judge, I renew my objection on the same grounds. He’s
continuing this inappropriate argument.
[The State]: I will withdraw the statement, Judge.
The Court: Okay, please.
All right.
[The State]: Would you like me to put it in the record now, [defense
counsel]?
[Defense counsel]: I will object when it’s necessary, Counsel.
[The State]: Okay.
[The State continued its closing argument]:
If [the victim’s] not telling the truth she has put on one heck of a
performance. She has manipulated, schemed, behaved with the sophistication
of a spy. The slide says “CIA field operative.” What-have-you. She’s
behaved with great sophistication just to hurt Morris Adcock. Is that what you
see going on here?
The slide in issue remained on the jurors’ screens for approximately three-and-a-half
minutes and the State’s rebuttal closing argument lasted approximately fifty minutes. The
record shows that the defense never renewed its objection when the prosecutor paraphrased
the information that was on the slide originally objected to by the defense. For this reason,
the State understandably asserts that the defense failed to specifically renew its objection to
this last statement. See Tenn. R. App. P. 36(a); Tenn. R. Evid. 103(a)(1). In our view,
however, the prosecutor referred back to the slide and argument to which defense counsel
originally objected. Accordingly, this issue is properly preserved for review.
In regard to this issue, Adcock argues on appeal that following the “inflammatory
statements and objection of Counsel, the Court fail[ed] to address the objection of the
Defendant, and fail[ed] to explicitly address the clear misconduct of the prosecutor, leaving
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the impression [that] there was no merit to the complaint.” He also argues that the trial court
never gave a curative instruction following the defense’s objections. In addition, he contends
that the prosecutor “only bolster[ed] the previous objectionable material [on the State’s
PowerPoint presentation slide]” when he paraphrased the statement on the slide later in his
closing argument. Moreover, Adcock asserts that the trial court erred in denying his motion
for new trial on the issue of whether the State had committed prosecutorial misconduct. He
claims that court erroneously denied his motion by making the following “single sweeping
statement”:
The Court: All right [sic], thank you both. I remember this case quite well.
We did try it twice. Mr. Adcock was indeed convicted of simple
assault[,] and the Court believes that all matters were proper. As
such, the motion for new trial is respectfully denied. Next
Motion?”
He claims that the evidence preponderated against the court’s finding at the motion for new
trial hearing that “all matters were proper.”
As previously noted, in determining whether a prosecutor’s conduct could have
affected the verdict to the prejudice of the defendant, this Court must consider the factors as
outlined in Judge. Viewing the prosecutor’s conduct in the context and in light of the facts
and circumstances of the case, we note that the defense consistently challenged the victim’s
credibility throughout the trial. During its closing argument, the defense suggested that the
biker ladies, with whom the victim had a verbal altercation after Adcock showed his tattoo,
were responsible for the victim’s injuries rather than Adcock. Although it was undisputed
that the victim had a verbal altercation with these women earlier in the night, there was
absolutely no evidence presented that the victim had come in contact with these women later
or that these women were in fact responsible for her injuries. The defense also pointed out
the discrepancies in the State’s proof and asserted that the State could have presented
witnesses to show the victim’s reputation for truthfulness and failed to do so. It is clear that
the comments Adcock complains of during the State’s rebuttal closing argument stemmed
from the prosecutor’s attempt to rebut the defense’s challenges to the victim’s credibility.
The State acknowledges that some of the prosecutor’s comments were not “entirely
proper” but argues that “there was no showing that the prosecutor intentionally engaged in
misconduct or that the comments were egregious when viewed [in] the context of the entire
trial and closing arguments as a whole.” We agree. Significantly, the trial court provided
the jury with the following instruction at the time of Adcock’s first objection during the
State’s rebuttal closing argument: “Well, just let me simply say this: This is closing
argument. This is not proof in the case. This is not evidence. It is closing argument, that’s
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all it is. Take it for what it is.” The court also cautioned the jury in its general charge that
arguments of counsel are not proof, stating: “Statements, arguments, and remarks of counsel
are intended to help you in understanding the evidence and applying the law, but they are not
evidence. If any statements were made that you believe are not supported by the evidence,
you should disregard them.” We note that a jury is presumed to follow a trial court’s
instructions. Banks, 271 S.W.3d at 134 (citing State v. Young, 196 S.W.3d 85, 111 (Tenn.
2006); State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001)). Moreover, when the defense
counsel objected to the prosecutor’s statement that the police would not have arrested and
charged Adcock unless they had cause to do so, the prosecutor offered to strike his statement
in the record, but defense counsel stated only that he would object when it was necessary,
arguably waiving any issue regarding this second comment. See Tenn. R. App. P. 36(a);
Tenn. R. Evid. 103(a)(1).
In addition, when looking at the record as a whole, we conclude that the prosecutor’s
intent in making these comments was to respond to the defense’s allegations that the victim
was not telling the truth about Adcock assaulting her. In order to counter the defense’s
claims of the victim’s dishonesty, the prosecutor reminded the jury that the victim had
consistently told her version of the events to a series of individuals from the beginning of this
case. Regarding the cumulative effect of the improper conduct and any other errors in the
record, we have already concluded that the clear majority of the other comments, unobjected
to by the defense, were rather innocuous. The comments of greatest significance, which will
be more fully discussed below, were limited to the content on the prosecutor’s PowerPoint
slide and his statement that police would not have arrested Adcock and the district attorney’s
office would not have tried this case if they did not have cause to do so. Finally, regarding
the relative strength or weakness of this case, we note that although the proof of Adcock’s
guilt was not overwhelming and his first trial had resulted in a hung jury, there was
substantial circumstantial evidence presented in this trial that corroborated the victim’s claim
that Adcock was responsible for her assault.
We view the prosecutor’s comments in this case as similar to those made by the
prosecutor in State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999). In Thornton,
we held that the prosecutor’s comment that the Tennessee Bureau of Investigation’s crime
laboratory did an excellent job was inappropriate but not reversible error:
It is a violation of the Code of Professional Responsibility, DR 7–106(C)(4)
for lawyers engaged in trial to express their personal opinion about any issue
involved in the justice of the cause they represent. See State v. Hall, 976
S.W.2d 121 (Tenn.1998). 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. Henley, 774 S.W.2d 908, 911 (Tenn.1989). Whether
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a statement qualifies as misconduct often depends upon the specific
terminology used. United States v. Stulga, 584 F.2d 142, 147 (6th Cir. 1978)
(stating “The use of the words ‘submit’ are not the equivalent of expressing an
opinion.”). In this case, the prosecuting attorney essentially vouched for the
effectiveness of the crime lab, stating that he was “very proud of our crime
lab.” He further stated that “[t]hey do an excellent job.” There were no
prefatory words, such as “ submit,” or qualifying terms, such as “In my view.”
Rather, the statement that the crime lab does “an excellent job,” qualified as
a personal opinion made before the jury and in contravention of the rule. The
statements would not, however, constitute reversible error under the Judge test.
In Thornton, just as in this case, the prosecutor’s comments did not contain the words
“I submit” or “in my view” and represented the prosecutor’s personal opinion; therefore, they
were improper. Here, rather than highlighting the specific proof that undermined the
defense’s theory, the prosecutor insinuated that the victim could not have lied about Adcock
assaulting her because she had convinced security guards, police, and prosecutors that she
was telling the truth. We agree with Adcock that these comments amounted to an improper
vouching for the credibility of the victim. However, we acknowledge that these comments
were made in response to defense counsel’s argument in closing that the victim lied about
Adcock being responsible for her injuries. See Goltz, 111 S.W.3d at 6 (courts must consider
the facts of each particular case as well as the argument made by defense counsel in
determining whether statements are considered prosecutorial misconduct). After applying
the Judge factors, we conclude that the prosecutor’s comments did not have a prejudicial
effect on the jury’s verdict. Although the prosecutor should not have vouched for the
credibility of the victim, we conclude that these two comments, while improper, were not so
egregious as to affect the outcome of Adcock’s trial, especially in light of the trial court’s
initial curative instruction and general instruction that arguments of counsel were not
evidence. See Banks, 271 S.W.3d at 131; Farmer, 927 S.W.2d at 591.
III. Cumulative Error. Adcock argues that he is entitled to relief based on the
cumulative effect of the aforementioned errors. In response, the State asserts that because
Adcock failed to establish any actual errors, he cannot establish cumulative errors entitling
him to relief. We agree that Adcock is not entitled to relief based on cumulative errors.
Initially, we note that although the United States Constitution and the Tennessee
Constitution grant the right to a fair trial, they do not grant the right to a perfect trial. State
v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000) (citing State v. Smith, 755 S.W.2d 757, 765
(Tenn. 1988)). The Tennessee Supreme Court recently defined the doctrine of cumulative
error:
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The cumulative error doctrine is a judicial recognition that there may
be multiple errors committed in trial proceedings, each of which in isolation
constitutes mere harmless error, but which when aggregated, have a
cumulative effect on the proceedings so great as to require reversal in order to
preserve a defendant’s right to a fair trial.
State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010) (citations omitted). The Hester court also
found that United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993), provided helpful insight
regarding the cumulative error doctrine. Hester, 324 S.W.3d at 77. In Sepulveda, the United
States Court of Appeals for the First Circuit provided guidance for appellate courts when
considering whether the aggregated errors at trial deprived a defendant of a fair trial:
Of necessity, claims under the cumulative error doctrine are sui generis.
A reviewing tribunal must consider each such claim against the background
of the case as a whole, paying particular weight to factors such as the nature
and number of the errors committed; their interrelationship, if any, and
combined effect; how the [trial] court dealt with the errors as they arose
(including the efficacy–or lack of efficacy–of any remedial efforts); and the
strength of the [State’s] case. See, e.g., [U.S. v.] Mejia-Lozano, 829 F.2d
[268,] 274 n.4 [(1st Cir. 1987)]. The run of the trial may also be important; a
handful of miscues, in combination, may often pack a greater punch in a short
trial than in a much longer trial.
Sepulveda, 15 F.3d at 1196.
Upon review, we conclude that the prosecutor’s improper statements did not “have
a cumulative effect on the proceedings so great as to require reversal in order to preserve
[Adcock’s] right to a fair trial.” Hester, 324 S.W.3d. at 76. Accordingly, Adcock is not
entitled to relief on this issue.
IV. Excessive Sentence. Adcock argues that his sentence is excessive. Specifically,
he asserts that the trial court failed to consider the purposes and principles of the sentencing
act as stated in Tennessee Code Annotated sections 40-35-102 and 40-35-103 and improperly
held that the factor in Code section 40-35-103(1)(B), that confinement was necessary to
avoid depreciating the seriousness of the offense or was particularly suited to provide an
effective deterrence to others likely to commit similar offenses, outweighed all other factors.
In addition, he contends that he was a favorable candidate for alternative sentencing because
his criminal history only consisted of two Class B misdemeanors and because measures less
restrictive than confinement had not been frequently or recently applied unsuccessfully to
him. See T.C.A. § 40-35-103(1)(A), (C). He also argues that his faithful compliance with
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the conditions of his bond for four years while his case was pending further indicates that he
would be amenable to rehabilitation. The State responds that Adcock is not entitled to relief
because the trial court considered the relevant sentencing factors and imposed a sentence
consistent with the purposes and principles of the Sentencing Act. We agree with the State.
Recently, the Tennessee Supreme Court concluded that a trial court’s sentencing
determinations in felony cases should be reviewed under “an abuse of discretion standard of
review, granting a presumption of reasonableness to within-range sentencing decisions that
reflect a proper application of the purposes and principles of our Sentencing Act.” State v.
Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Shortly thereafter, the Tennessee Supreme Court
applied the abuse of discretion standard, accompanied by a presumption of reasonableness,
to “questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). To date, the Tennessee Supreme Court has not addressed
whether the abuse of discretion standard to misdemeanor sentencing. However, because our
court has consistently applied the abuse of discretion standard with a presumption of
reasonableness to misdemeanor sentencing cases, we will do so in this case. See State v.
Robert Joseph Harr, No. W2011-02735-CCA-R3-CD, 2013 WL 5422801, at *6 (Tenn. Crim.
App. Sept. 27, 2013); State v. Dustin A. Hubman, No. E2012-01569-CCA-R3-CD, 2013 WL
3462738, at *2 (Tenn. Crim. App. July 8, 2013), perm. app. denied (Tenn. Sept. 10, 2013);
State v. Michael Glen Walsh, No. E2012-00805-CCA-R3-CD, 2013 WL 1636661, at *4
(Tenn. Crim. App. Apr. 17, 2013).
Pursuant to the 2005 amendments to the Sentencing Act, a trial court must consider
the following when determining a defendant’s specific sentence and the appropriate
combination of sentencing alternatives:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and
(7) Any statement the defendant wishes to make in the defendant’s own behalf
about sentencing.
T.C.A. § 40-35-210(b). The defendant has the burden of showing the impropriety of the
sentence on appeal. Id. § 40-35-401(d), Sentencing Comm’n Cmts. In determining the
proper sentence, the trial court must consider the defendant’s potential for rehabilitation or
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treatment. See id. §§ 40-35-102, -103. In addition, the court must impose a sentence “no
greater than that deserved for the offense committed” and “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Id. §§ 40-35-103(2),
(4).
Adcock argues that the trial court erred in refusing to grant some form of alternative
sentencing. We note that any sentence that does not involve complete confinement is an
alternative sentence. See generally State v. Fields, 40 S.W.3d 435 (Tenn. 2001). Tennessee
Code Annotated section 40-35-102(6)(A) states that a defendant who does not require
confinement under subsection (5) and “who is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary[.]” However, a trial
court “shall consider, but is not bound by, the advisory sentencing guideline” in section 40-
35-102(6)(A). T.C.A. § 40-35-102(6)(D). A trial court should consider the following when
determining whether there is “evidence to the contrary” indicating that an individual should
not receive alternative sentencing:
(A) Confinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant[.]
Id. § 40-35-103(1)(A)-(C); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
Here, Adcock was convicted of a Class A misdemeanor, which carries a maximum
sentence of eleven months and twenty-nine days. See T.C.A. § 40-35-111(e)(1). An
individual convicted of a misdemeanor has no presumption of entitlement to a minimum
sentence. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999) (citing State v.
Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); State v. Creasy, 885 S.W.2d 829, 832
(Tenn. Crim. App. 1994)). Sentences for misdemeanor offenses must be specific and in
accordance with the principles, purpose, and goals of the Criminal Sentencing Reform Act
of 1989. T.C.A. §§ 40-35-104, -302. The sentencing court is granted considerable latitude
in misdemeanor sentencing. Johnson, 15 S.W.3d at 518 (citing State v. Troutman, 979
S.W.2d 271, 273 (Tenn. 1998)). While a separate sentencing hearing is not mandatory in
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misdemeanor cases, the court must provide the defendant with a reasonable opportunity to
be heard regarding the length and manner of the sentence. See T.C.A. § 40-35-302(a).
“[A] misdemeanor offender must be sentenced to an authorized determinant
sentence[,]” and “a percentage of that sentence, which the offender must serve before
becoming eligible for consideration for rehabilitative programs, must be designated.” State
v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). Typically, a percentage not greater than
seventy-five percent of the sentence should be fixed for a misdemeanor offender; however,
an individual convicted of DUI may be required to serve 100% of his or her sentence. Id. at
393-94; T.C.A. § 40-35-302(d). Because no percentage was expressed in Adcock’s
judgment, his percentage is zero percent. T.C.A. § 40-35-302(d).
Here, the trial court held that an alternative sentence would not serve as a deterrence
to Adcock based on his prior criminal conduct and would not serve the interests of the public
or the defendant. In addition, the court found that Adcock had “some serious anger issues,”
as shown by “his prior criminal behavior, not necessarily his criminal convictions, because
he has few.” The court noted that Adcock had been charged several times with assault and
domestic assault. In addition, the court considered the circumstances of this offense and the
photographic proof that the victim had been “beaten severely.” It also held that Adcock was
not amenable to rehabilitation based on the proof at trial and his history of criminal behavior.
The court primarily relied on Code section 40-35-103(1)(B), that confinement is necessary
to avoid depreciating the seriousness of the offense and is particularly suited to provide an
effective deterrent to others likely to commit similar offenses, to deny an alternative sentence
before sentencing Adcock to eleven months and twenty-nine days in the county jail. We note
that the record also supports the application of Code section 40-35-103(1)(A) because
Adcock had a long history of criminal conduct, which consisted not only of his two
convictions for resisting arrest and driving while intoxicated but also of multiple charges for
domestic assault, assault, and evading arrest. Because the criminal court sentenced Adcock
within the appropriate range for the domestic assault conviction and because the sentence
reflected the trial court’s proper application of the purposes and principles of the Sentencing
Act, we conclude that the trial court did not abuse its discretion in imposing a sentence of
eleven months and twenty-nine days in confinement.
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CONCLUSION
Upon review, we affirm the judgment of the trial court.
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CAMILLE R. McMULLEN, JUDGE
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