State of Tennessee v. Jason Allen Cobb

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

October 2, 2012 Session

STATE OF TENNESSEE v. JASON ALLEN COBB

Appeal from the Circuit Court for Hardeman County

No. CC 2010-CR-146 J. Weber McCraw, Judge

No. W2011-02437-CCA-R3-CD - Filed March 26, 2013

A Hardeman County jury convicted appellant, Jason Allen Cobb, of second degree murder.

The trial court sentenced him to twenty-three years in the Tennessee Department of

Correction. On appeal, appellant contends that (1) the trial court erred in admitting improper

character evidence; (2) a witness’s false testimony violated his right to a fair trial; (3) the

State engaged in prosecutorial misconduct; (4) the evidence was insufficient to support his

conviction; and (5) the trial court erred in ordering him to serve his sentence in this case

consecutively to his sentence in another case. Upon review of the record, the parties’ briefs,

and applicable law, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OGER A. P AGE, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS

and J EFFREY S. B IVINS, JJ., joined.

Gary F. Antrican, District Public Defender; and Shana Johnson and Parker O. Dixon,

Assistant District Public Defenders, Somerville, Tennessee, for the appellant, Jason Allen

Cobb.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney

General; D. Michael Dunavant; District Attorney General; and Joe Van Dyke and Katie

Walsh, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Procedural History and Facts

A Hardeman County Grand jury indicted appellant, who was an inmate at the

Hardeman County Correctional Facility, for second degree murder based on the death of

another inmate in April 2010. The trial court presided over a jury trial on May 17-18, 2011,

at which the parties presented the following evidence:

Correctional Officer Larry Cheairs testified that his April 19, 2010 shift at Hardeman

County Correctional Facility began at 7:00 p.m. and ended at 7:00 a.m. He was responsible

for three of the prison pods and made rounds about eight times a night. Officer Cheairs

described his duties as counting the inmates and monitoring the inmates for any illegal

activities. He identified appellant in the courtroom and stated that he had known appellant’s

cellmate, Ricky Gardner, the deceased victim. He testified that the last time he saw the

victim alive was around 2:00 a.m. on April 20, 2010. The victim was pacing back and forth

inside the cell, and appellant appeared to be asleep on his bunk. At the next check, which

was between 4:30 a.m. and 5:00 a.m., Officer Cheairs stated that appellant and the victim

were in their bunks. Officer Cheairs testified that between cell checks, he did not see or hear

anything to alert him to any disturbance in appellant’s cell.

On cross-examination, Officer Cheairs stated that on April 19, 2010, his count of

twenty cells took “about two or three minutes.” He explained that his count consisted of his

walking by and flashing his flashlight into the cell. When informed that the video recorded

his count at one minute and twenty-two seconds, Officer Cheairs replied, “Yeah, it’s

possible[,] but I don’t think that I would walk through that fast.” When asked if he would

have had much time to observe people moving around, Officer Cheairs replied, “When

you’re looking in their face, you would.” He also said, “[The victim] was coming to the door

when I walked through.” Officer Cheairs also testified that he did not remember seeing a

television in the cell. He further stated that he was no longer employed at the Hardeman

County Correctional Facility.

On redirect examination, Officer Cheairs explained that the control booth kept the

time log of his cell inspections and stated, “I just did my check.” He again confirmed that

the victim was alive when he checked on him at 2:00 a.m. On recross-examination, Officer

Cheairs admitted that the control booth video kept the time and would have to be relied upon

as the correct time.

The trial court accepted Dr. Lisa Funte, a medical examiner for the Shelby County

Regional Forensic Center in Memphis, as an expert witness in the field of pathology. Dr.

Funte testified that she conducted the autopsy of the victim. Dr. Funte identified the

investigative report, autopsy report, toxicology report, and diagrams and photographs from

the autopsy. They were admitted into evidence. She outlined her office’s procedure for

receiving a body, conducting an external examination, photographing evidence, and, if

needed, collecting evidence. Dr. Funte found external and internal injuries to the victim’s

neck area consisting of red discoloration and hemorrhage in muscles in the front of the neck

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and in the deep soft tissue of the neck. She also found petechial hemorrhages, which she

described as “a bunch of little red hemorrhages” in the membrane that covers the eye, called

the conjunctiva. In addition, the fingernail on the victim’s right index finger had been pulled

back from the nail bed, and there was blood underneath. Dr. Funte testified that based on her

investigation and observation, she found the cause of death to be manual strangulation and

the manner of death to be a homicide.

On cross-examination, Dr. Funte noted that the victim’s body was in an early state of

decomposition, which could be attributed to the victim’s being dead “a day or two,” being

sick at the time of his death, or being in a warm room. She testified that the victim’s injuries

appeared to have been inflicted “from behind the individual with an arm bar, a choke hold[,]

or something like that,” which would be more consistent with her findings than a frontal

assault with the hands. On redirect examination, Dr. Funte testified that her examination of

the victim’s body revealed no evidence of a struggle with another individual, and “[t]he only

other injury on him was that broken [finger]nail.”

Terrence Olridge, an employee at the Hardeman County Correctional Facility, testified

that April 19, 2010,1 was his first day on the job at the correctional facility. He stated his

shift began at 7:00 a.m. and ended at 7:00 p.m. Prior to his first official day, he was given

about a week of floor training, which was “[p]retty much regular security checks, pat downs,

. . . doing disciplinaries, and things of that matter.” He was assigned to appellant’s unit and

remembered appellant and the victim. Officer Olridge testified that when he arrived for duty

that morning, he performed security checks that consisted of walking around the pods

looking for anything out of the ordinary such as covered windows, clotheslines, or assaults

in progress. He stated that he was required to touch “a little silver place on the wall” to

confirm his check. Officer Olridge explained that his next duty was a cell check during

which he primarily looked for contraband such as weapons or cellular telephones. He

testified that he usually conducted one contraband search per day, and his shift sergeant made

the cell designation. He further testified that on April 19, 2010, he was assigned cell J-F 209,

which was the cell of appellant and the victim.

Officer Olridge stated that he conducted the cell check of appellant and the victim

around “nine, maybe 9:20, 9:30” a.m. He stated that during the cell check, an officer

removed the inmates from the cell, then an officer searched “the bunks, the TVs, the

clothing, the gray tubs they [had].” He recalled asking appellant and the victim to leave the

cell and stated:

1

While Officer Olridge testified that his first day was April 19, 2010, we glean from the record that

this must have been a misstatement, and his first day was actually April 20, 2010.

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Well, I asked Cobb to step out, which he did, and he removed the stuff from

the top window as he stepped out of the cell. Then I went in the cell, then I

asked - I verbally told Mr. Cobb - his cellie, Gardner, to step out and he wasn’t

moving so I asked Mr. Cobb what was going on with that cellie and he told me

he was asleep.

Officer Olridge testified that the victim did not respond when asked to leave, and he

proceeded to conduct the search with the victim in the cell, which Officer Olridge admitted

was not proper protocol. However, this was his first day on the job, and he was not aware

of the rule. He recalled seeing appellant’s “belongings” packed up and asked appellant

where he was going. Appellant replied that he was going into protective custody. Officer

Olridge stated that appellant never made any statements about any prior incidents with his

cellmate occurring the night before. He stated that he did not hear any beating or banging,

see any flashing lights, or notice anyone trying to get his attention on his rounds of the pod

that morning. Upon learning of appellant’s request for protective custody, Officer Olridge

asked appellant to step back in the cell, and he proceeded to notify his unit manager of

appellant’s request. Officer Olridge further testified that he completed his inmate count at

approximately 10:40 a.m. by accompanying Ellen Futrell and Case Manager Tenisha

Douglas into appellant’s cell and observing the same unchanged position of the victim.

On cross-examination, Officer Olridge admitted that he did not arrive for work until

7:00 a.m. and would not have witnessed any events of the previous early morning hours.

Until being shown his statement to the Internal Affairs Investigator, Officer Olridge could

not recall tapping the victim trying to awaken him. Officer Olridge stated he remembered

appellant’s telling him that the victim was asleep. He related that this occurred at about 9:00

a.m. Officer Olridge stated he did not hear anyone say anything about the victim’s going to

breakfast that morning. Officer Olridge testified that at about 9:35 a.m., he went to his unit

manager, Officer Robinson, and informed her of appellant’s request for protective services.

Officer Olridge recalled that Officer Robinson, Ellen Futrell, and Ms. Douglas were in the

cell with him when they discovered the deceased victim.

On redirect examination, Officer Olridge testified that he remembered seeing the

victim’s pillow, but he remembered that the victim’s blanket was “[p]robably midways.” He

stated that appellant told him that he was going into protective custody, not that he was going

to ask to go into protective custody.

Ellen Futrell, a fourteen-year employee at the Hardeman County Correctional Facility,

explained that she supervised the correctional officers and the inmates. Officer Futrell

testified that she was conducting a “security [walkthrough] with the unit team” when she

noticed that cardboard had been placed over appellant’s cell window, which was a violation

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of security rules. She verbally directed the victim to remove the cardboard from the window,

but he did not respond. After getting no response, Officer Futrell stated:

I walked over and I said, “I’m fixing to get this cardboard out of the window.

Don’t reach up here and hit me,” you know, because I thought he was asleep,

and that’s what his cellie said, “Well, he’s asleep.” So I pulled the cardboard

out of the window and he still hadn’t moved[,] so that’s when I tapped him.

....

I tapped him again and Ms. Douglas, the case manager . . . was there, I turned

around and I said, “This guy ain’t moving.” And at that time, she stepped into

the cell[,] and I called a Code Four, which is medical.

Officer Futrell identified appellant as the victim’s “cellie” who told her that the victim was

asleep.

When asked about the placement of the blanket on the deceased victim, Officer Futrell

recalled that “[I]t was over his head,” but after considering the earlier security count, she

stated that the blanket stopped near the victim’s shoulders. Officer Futrell said that she had

no knowledge of appellant’s being transferred to protective custody and testified that the

transfer had not passed through any official channels.

On cross-examination, Officer Futrell explained the function and procedure that

correctional officers followed regarding the call buttons in every cell. When an inmate

activates the call button, it alarms or “beeps” in the control room and will continually sound

until someone answers the call. Officer Futrell explained that after the call is answered, a

manual entry is made in the logbook but admitted that if a call is not answered and no

logbook entry made, no record of the call would exist. Officer Futrell testified that it would

“[p]robably take [her] a good ten to fifteen minutes” to walk and count inmates in twenty

cells, and if someone conducted a count in one minute and twenty-two seconds, “[they

would] just be walking. [They] wouldn’t see anything.”

Officer Futrell denied giving a statement to investigators with Internal Affairs. She

stated that she talked to “some guy,” but she did not know his title or if he was an

investigator with Internal Affairs. Defense counsel gave Officer Futrell a copy of her

statement and asked if it was the statement that she gave to “[that] guy or Nickie Jordan with

Internal Affairs.” Officer Futrell answered that it was the statement that she had given. She

acknowledged that her statement did not mention that appellant told her that the victim was

asleep, but she maintained that appellant did, in fact, tell her that. She agreed that her

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memory of the incident was more fresh at the time she gave her statement than at trial;

however, she also denied that her memory was incorrect at the time of trial. Officer Futrell

testified, on recross-examination, that she was not reprimanded or re-instructed on proper

count procedures as a result of the victim’s death.

Tenisha Douglas testified that she was employed as a case manager at the Hardeman

County Correctional Facility. She stated that she dealt with clothing issues, reclassifications,

and any personal issues that arose in the facility. On the date of this incident, her unit team

was conducting a walkthrough, usually completed once a week, which consisted of making

sure the cells were in facility compliance. Ms. Douglas explained that she was next door to

the cell of the victim and appellant when she heard Officer Futrell call her name. Ms.

Douglas related what she observed as she responded:

Inmate Cobb was standing at the door. Ms. Futrell was standing over the body

- the guy on the bottom bunk, and she was, like, “He ain’t moving. He won’t

respond.” And I - that’s when I felt his pulse and “I said no. You should call

the Code Four.” And I was like - We called Ms. Robinson, which is the unit

manager, and she said, “Y’all step out of the cell” and we stepped out of the

cell along with Mr. Cobb until medical got there.

Ms. Douglas further testified that she believed that the victim’s back was toward her when

she approached him and that she placed her hand on his neck to feel his pulse. She did not

notice anything odd about the victim’s clothing. She stated, “[A]fter I didn’t feel a pulse, I

didn’t pay attention. I just told them, you know, ‘[W]e need to get out of the cell,’ or

whatever.” Regarding any conversation with appellant while they were standing outside the

cell, Ms. Douglas testified that when they were in the cell, she heard appellant say, “‘He’s

asleep - he’s asleep,’” before she had touched the victim. She recalled that the doctor was

at the facility that day and pronounced the victim dead at the scene.

On cross-examination, Ms. Douglas recalled entering the victim’s cell “a little after

ten because it was count time” and that the inmates were locked down for count time, which

started at 10:15 a.m. She acknowledged being familiar with the cell of the victim and

appellant because she had been there previously. However, she could not confirm the

presence or absence of items in the cell because “[e]very inmate has different stuff in their

cell . . . .” She recalled that Officer Futrell, Officer Olridge, Unit Manager Robinson, and

Case Manager Leake were with her in the cell.

James Taylor testified that he was a former inmate at the Hardeman County

Correctional Facility and that he was housed in the cell next to the victim and appellant in

April of 2010. Mr. Taylor remembered appellant and identified him in the courtroom. He

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recalled playing chess with the victim, an “older black gentleman,” every day, sometimes

twice a day, and denied ever having any problems with either appellant or the victim.

Additionally, Mr. Taylor denied hearing yelling, banging, or anything odd on the night of the

victim’s death.

During cross-examination, Mr. Taylor described how officers conducted inmate

counts. He stated, “They just walk around[,] count how many people [are] in a room[,] and

keep moving.” He further testified,

I’d say about the 9:30 count when we first get locked down[,] they’ll come

around and kind of look. After the 9:30 count they just walk in, fake like they

[are] looking in the cell[,] and keep moving.

Mr. Taylor admitted he did not know appellant very well and characterized appellant as “kind

of weird,” not socializing with the other inmates.

Investigator Michelle Brush of the Hardeman County Correctional Facility testified

that she was not on duty when the victim was found, but she arrived shortly thereafter. She

identified and described surveillance video that showed the housing unit, cell doors, and any

movement of inmates and staff around the unit. Investigator Brush outlined the operation

and function of the inmates’ intercom box in each cell. She explained that when an inmate

activated the intercom button, an audible alert sounded, and a flashing light became visible

on the control panel in the control booth. The officer who pressed the button to answer the

call in the control booth would immediately hear communication from the inmate’s cell. To

close communication with the cell, the officer would press the reset button.

Investigator Brush further testified that she had no knowledge of appellant’s asking

for protective custody and explained that the facility provided protective custody when an

inmate had “some kind of concern or whatever.” Protective custody isolated inmates from

the general prison population.

On cross-examination, Investigator Brush explained the operation of the inmate’s

intercom button as it is heard in the control booth, stating, “When [the officer] press[es] the

button[,] the audio begins being heard, you press the button release. You can hear the audio

until you then press the reset button.” During the viewing of the surveillance video of

appellant’s pod, Investigator Brush explained the visible area and the actions of the officer

on duty. She testified that the video showed an officer entering the pod camera view at

1:50:23 a.m. and exiting the pod at 1:51:53 a.m. She identified the officer in the video as

Larry Cheairs.

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During redirect examination, Investigator Brush testified from her video notes that she

first observed appellant leave his cell at 9:26 a.m. when Officer Olridge entered to conduct

a cell search. She stated that it was possible appellant left his cell earlier for breakfast in the

dining hall. On recross-examination, Investigator Brush admitted that, at this point and

without viewing another portion of the video and record, she could not testify whether he

exited the cell for a meal or not.

Agent Joe England, a Special Agent with the Tennessee Department of Correction,

Internal Affairs Division, testified that he investigated criminal or administrative cases

involving inmates of the Tennessee Department of Correction. In April of 2010, he

investigated the death of the victim at the Hardeman County Correctional Facility. Agent

England identified appellant as the victim’s former cellmate. After arriving at the scene of

the incident, Agent England photographed and inspected the cell, its contents, and the

decedent’s body. He noted that the cell appeared to be in a normal state, having no signs of

a fight or anything out of the ordinary. The only thing that seemed odd to him was the

property of one of the inmates being prepacked and on the top bunk. In his examination of

exhibit photographs, Agent England identified the intercom button on the wall in the cell and

stated that the distance from any point in the cell to the intercom button was “no more than

three [steps], depending on [one’s] stride.” He testified that he viewed the surveillance video

at length and made notes regarding movements in and out of appellant’s cell. Agent England

noted that at 5:47 a.m., a person whom he believed to be appellant exited the cell and re-

entered the cell at “[a]pproximately 5:53 a.m.” Other than correctional officers later in the

day, this was the only person he saw exit or enter the cell.

During cross-examination, Agent England testified that he contacted Warden Joe

Easterling about the inmate count procedure violations, and the warden informed him that

he had verbally reprimanded and talked with each correctional officer. On redirect

examination, Agent England agreed that depending on the tone of voice or setting, an

employee might not perceive a verbal talk as a reprimand. He also agreed that the

implemented changes in procedures applied to everyone in the facility.

Cornelius Davis testified on behalf of appellant that he had served four and one-half

years at the Hardeman County Correctional Facility. He was acquainted with the victim but

only knew appellant by sight. He recalled the victim’s death on April 19, 2010, and

remembered hearing Ms. Futrell tell Ms. Robinson, the Unit Manager, that “she had seen Mr.

Gardner go to breakfast.” In response, Mr. Davis screamed through the door saying, “‘Ms.

Futrell, you are telling a story because I used to wake Mr. Gardner up for breakfast every

morning.’” When asked if he knew something was wrong, Mr. Davis answered,

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I didn’t know nothing [sic] was wrong, you know what I’m saying, because I

just knocked on the door - I just thought he didn’t make it to breakfast or he

already had went because I ain’t seen him.

On cross-examination, Mr. Davis testified that he was housed in Cell 2010, which is

next to the cell of appellant and the victim, and that he heard appellant scream the night of

the victim’s death, as he had on several previous occasions. He stated he did not hear a fight

in progress or any “yelling at folks” that night. Mr. Davis also testified that if someone in

the next cell had pushed the intercom button, he would have heard the officers answer.

On redirect examination, Mr. Davis agreed that if the intercom request was not

answered, he would not have heard any voices. He explained that when an inmate activated

the intercom button, it would sound until someone responded.

Appellant testified that he was serving ten years at the Hardeman County Correctional

Facility for aggravated robbery and that he had three prior cellmates before the victim. He

stated that his relationship with the victim was not good. Appellant further stated, “[the

victim] used to make sexual advances, you know what I’m saying, towards me. He used to

cuss me out, call me young and ignorant. I guess he was just old and senile. I don’t know.”

Appellant said the victim would offer him his commissary, which could include “food,

items, clothing, anything, electronics, anything like that,” but he never accepted any

exchanges from the victim, stating, “No, sir. I’m not a homosexual or nothing like that.” He

testified that the victim’s sexual advances were numerous and that he did not report it

because he was embarrassed, did not want trouble with other inmates for reporting it, and did

not want to get a “write-up.” Appellant testified that on the evening of April 19, 2010, the

victim approached him with his pants down for a sexual favor. Appellant stated that when

he refused, the victim pulled up his pants, became aggressive, and “swung” at him.

Appellant further stated that he grabbed the victim and “[took] him down.” Further

describing the incident, appellant testified,

Well, he swung at me - he swung at me with his right - with his right hand. I

sort of like blocked it with my left hand and his body turned to the right so

that’s when I took my hand - my right arm around his neck and then I began

putting him in the sleeper or choke hold or submission hold, you know what

I’m talking about.

Appellant testified, “He kept on getting stronger and getting stronger like he was

fixing to break down - break me up out of the hold so I brought him down to the ground in

the same fashion of holding him.” Appellant further testified that he asked the victim several

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times if he was going to stop being aggressive. He said the victim “didn’t respond to it, he

just kept moving. Kept moving. It wasn’t like he was trying to get out of it. He was trying

to fight me back.” Appellant stated he asked the victim “about four times” to stop fighting

back, then “[the victim] quit putting up a struggle[,] and he just let go[,] and once he let go,

I let go.” Appellant recounted that he pushed the intercom button once or twice, heard

“somebody mess with the intercom thing,” and “flicked the lights on and off” trying to get

the control booth officer’s attention. He testified that as an officer was walking by, he

knocked on the window and yelled that he had a problem but was unable to “tell the officer

anything.” Appellant stated,

I was panicking at the time, you know what I’m talking about. After he left

past me I just - looked around the cell for a moment and I prayed because I

didn’t know what to do. This man had passed out or whatnot, you know what

I’m saying. I moved him - I moved him up to the bed because I didn’t want

him on the floor, you know what I’m talking about, if they do come in. I just

put him on the bed and put his cover over him. They still didn’t come back.

After that, I just quit trying to ask for help because they wouldn’t come,

wouldn’t respond.

He did not know at what time this occurred, only that it was still dark outside. He further

testified, “I really didn’t have any thoughts in my mind. I was just like this man needs some

help, you know what I’m talking about, and I couldn’t get it for him so[,] I just gave up

basically.”

Appellant stated that he went to breakfast and went about his normal business. He

recalled the first officer’s entering the cell and conducting a cell search. Later, Ms. Futrell

and the others entered.

Appellant did not recall telling any officer that he was expecting to go into protective

custody, but he admitted that before this incident, he had been speaking with a counselor

about it. Appellant testified that when the victim charged him, he thought the victim was

going to injure him, and he had to defend himself. He stated, “I didn’t know what he was

going to do. I guess you - it’s safe to say that, it was a me or him situation.” He recounted

that the victim told him that he was incarcerated for rape, when, in fact, he was incarcerated

for murder. Appellant thought that by doing so, the victim was “trying to intimidate [him].”

On cross-examination, appellant explained problems he had with two prior cellmates.

He stated that his first cellmate “[came] to [him] about some affiliation about some gang,”

and he and the second cellmate got into “an altercation in the classroom[,] and [appellant]

got moved to segregation.” He admitted that he did not report the victim’s sexual advances

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because he was “trying to avoid write-ups” and that he only told someone after the victim

was deceased. He testified that the victim struck him first on the shoulder, at which time

appellant placed the victim in a “strangle hold” until the victim ceased resisting. Appellant

further testified that he pushed the intercom button twice yelling for help and stated,

“Nobody responded either time.” When asked why he moved the victim from the floor and

onto a bunk, appellant responded, “The problem was he was just laying [sic] on the floor.

He wasn’t - he was just - he was just in the way.” Appellant testified that he did not try to

get help any more and possibly went to sleep. He further testified that he went to breakfast

and did not ask for anyone’s help because “[the victim] usually don’t [sic] even get up and

go to breakfast. He usually gets somebody to wake him up.”

On redirect examination, appellant testified that he was defending himself and did not

mean to kill the victim. Appellant stated, “[The victim] died because he tried to make sexual

advances, swinging at me, I thought I was - I thought if I let go I’d be overtaken by him or

whatnot, and that was it. I thought he was unconscious or something, not breathing. I didn’t

know.”

Benjamin Swenson testified that he served time between 2003 and 2010 for

aggravated sexual battery. He met the victim at the South Central Correctional Facility, and

they became friends through playing chess. He recounted an incident of the victim’s

repeatedly asking him for sexual favors. He stated that when he refused, the victim became

argumentative and attacked him. Mr. Swenson testified that after “wrestling real rough,” he

relented, “[gave] him a hand job,” and was allowed to leave the cell.

On cross-examination, Mr. Swenson denied giving the victim sexual favors for

commissary credits and admitted making an assault report on the victim, stating, “I did use

Ricky to get out of there but I was scared for my life from Ricky.”

On redirect examination, Mr. Swenson agreed that he was placed in segregation

before being transported out and admitted that he was afraid for his life. He identified a

photograph of some of his injuries and explained that there were also injuries to his elbow,

hands, ribs, and foot.

On recross-examination, Mr. Swenson admitted he and the victim were “in a pretty

good wrestling match,” that he was in prison for aggravated sexual battery, and that his

victim was less than thirteen years of age.

Investigator James Nadolski testified that he was an Internal Affairs Investigator at

the South Central Correctional Facility. He recalled investigating an incident in 2008

involving Mr. Swenson and the victim during which Mr. Swenson alleged that he was forced

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to perform a sexual act on the victim. He identified photographs taken of Mr. Swenson after

the incident, which showed scratch marks on his body. Investigator Nadolski testified that

Mr. Swenson had slight bruising to his ribs and swelling to both ankles. He recalled Inmate

Gardner admitting only that

at some point in time during this chess game, [Mr.] Swenson got up or stood

up in his presence and [the victim] stated that he put his hands on his shoulder

to calm him down and had him sit back down and play the game, at which

point [Mr.] Swenson kind of blew up at the game and that was the only

physical contact that [the victim] would admit to.

Investigator Nadolski’s physical examination of the victim revealed no marks on his body.

On cross-examination, Investigator Nadolski testified that he found the allegations

made by Mr. Swenson to be unsubstantiated. On redirect examination, Investigator Nadolski

clarified that he was unable to establish that an attack had occurred and stated, “If I was able

to establish an attack, I would have charged [the victim] with assault or fighting.” He

testified that the victim’s disciplinary record reflected that his last incident of fighting was

in 2002, six years before Inmate Swenson’s allegations. He also had an assault or fighting

incident in 1997 and a sexual misconduct incident in 1991. Investigator Nadolski further

related that his file showed the victim received infractions for threatening an employee in

1991, assault in 1988, and fighting in 1987.

After hearing the evidence, the jury convicted appellant of second degree murder. The

trial court held a sentencing hearing on August 26, 2011. At the sentencing hearing, three

of the victim’s sisters testified about the effect the victim’s death had on their family.

Appellant’s father also testified about appellant’s character, prior conviction for aggravated

robbery, and problems with other inmates while incarcerated.

After hearing the evidence at the sentencing hearing, the trial court found as a

sentence enhancement factor that appellant had a previous history of criminal convictions or

behavior in addition to those necessary to establish the appropriate range and that appellant

was incarcerated in a penal institution for a felony charge or a felony conviction at the time

he committed the underlying felony.2 The trial court did not find any mitigating factors.

Regarding consecutive sentencing, the trial court found that appellant was a dangerous

offender whose behavior indicated little or no regard for human life and that appellant had

2

See Tenn. Code Ann. § 40-35-114(1), (13)(I) (2010).

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no hesitation about committing a crime in which the risk to human life was high.3 The court

ordered that appellant serve a sentence of twenty-three years, at 100% release eligibility,

consecutive to the sentence that he was serving.

II. Analysis

Appellant argues that the trial court committed reversible error when it admitted

improper character evidence, that false testimony violated his right to a fair trial, that the

prosecution engaged in misconduct, that the evidence was insufficient to support his

convictions, and that the trial court erred in sentencing him.

A. Character Evidence

Appellant contends that the trial court erred when it allowed testimony regarding his

prior bad acts. Moreover, he argues that the State “continually and prejudicially utilized

inadmissible and inappropriate character evidence in cross-examination of [appellant’s]

witnesses, including [appellant].” Appellant acknowledges that he failed to raise this issue

in his motion for new trial; however, he requests that this court consider the issue under plain

error review. The State responds that the appellant has waived this issue because he failed

to include it in his motion for new trial and amended motion for new trial and that the trial

court properly admitted the evidence.

It is undisputed that appellant did not raise the issue of the trial court’s admission of

the allegedly improper character evidence in his motion for new trial or in his amended

motion for new trial. “[I]n all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence . . . unless the same was

specifically stated in a motion for a new trial; otherwise such issues will be treated as

waived.” Tenn. R. App. P. 3(e). “Ordinarily, issues raised for the first time on appeal are

waived.” State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996) (citing State v.

Burtis, 664 S.W.2d 305, 310 (Tenn. Crim. App. 1983)). “However, the waiver provision

does not apply when the issue, if found to be meritorious, would result in the dismissal of the

prosecution against the accused.” State v. Scott G. Clevenger, No. E2007-00298-CCA-R3-

CD, 2008 WL 588862, at *3 (Tenn. Crim. App. Mar. 5, 2008) (citing State v. Keel, 882

S.W.2d. 410, 416 (Tenn. Crim. App. 1994)). Because this issue would not result in the

dismissal of the prosecution of the accused, this court could certainly conclude that

appellant’s issue of whether the trial court admitted improper character evidence is waived.

See Tenn. R. App. P. 3(e); Tenn. R. Crim. P. 33(b).

3

See id § 40-35-115(b)(4) (2010).

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Waiver notwithstanding,

[w]hen necessary to do substantial justice, an appellate court may consider an

error that has affected the substantial rights of a party at any time, even though

the error was not raised in the motion for a new trial or assigned as error on

appeal.

Tenn. R. App. P. 36(b). This discretionary consideration of waived issues is often referred

to as “plain error” review. See Grindstaff v. State, 297 S.W.3d 208, 219 n.12 (Tenn. 2009).

Our supreme court formally adopted this court’s Adkisson test for reviewing claims of plain

error:

The Court of Criminal Appeals has developed five factors to consider when

deciding whether an error constitutes “plain error” in the absence of an

objection at trial: “(a) the record must clearly establish what occurred in the

trial court; (b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely affected; (d) the

accused did not waive the issue for tactical reasons; and (e) consideration of

the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,

641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record before

a court will find plain error. Id. Complete consideration of all the factors is not necessary

when clearly at least one of the factors cannot be established by the record.

Appellant complains that the trial court allowed the State to question him regarding

his aggravated robbery conviction to show that appellant was “the violent one in the cell.”

He further asserts that the State made improper comments during closing arguments,

including suggesting that appellant had made sexual advances toward the victim. In addition,

appellant posits that the State attempted to cross-examine Mr. Swenson regarding “irrelevant

and prejudicial character and propensity information,” specifically that he performed sexual

acts for commissary credits, in order to prejudice the jury against Mr. Swenson. Appellant

states that he presented Mr. Swenson’s testimony to corroborate his theory of self-defense

and that “[t]he State’s poisoning of the jury against Mr. Swenson was inappropriate and

deprived [appellant] of the right to a fair and impartial trial and to call witnesses [on] his

behalf.” There is no evidence that appellant waived review of these issues for any tactical

reason. Because the record clearly establishes what happened in the trial court regarding

these issues, we move on to consider whether a clear and unequivocal rule of law was

breached.

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1. Impeachment of Appellant with Evidence of Prior Conviction

for Aggravated Robbery

Appellant first takes issue with the State’s questioning him regarding his prior

conviction for aggravated robbery. On cross-examination, after appellant had already

brought up his conviction on direct examination, the State asked appellant if he had a

conviction for aggravated robbery and if aggravated robbery was a violent offense.

The decision whether to admit evidence rests within the trial court’s sound discretion,

and we will not reverse the trial court’s determination absent a clear showing of an abuse of

that discretion. See State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).

Evidence is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the act more probable or less probable than it would be

without the evidence.” Tenn. R. Evid. 401. “Once evidence satisfies the definition of

relevance, it becomes admissible unless a rule excludes it.” Tenn. R. Evid. 402, Advisory

Comm’n Cmts.

Rule 609 of the Tennessee Rules of Evidence provides that under certain conditions,

a witness’s credibility can be attacked with evidence that the witness has been convicted of

a crime. Such conditions are that the crime must be punishable by death or more than one

year in prison or must have been a crime involving dishonesty or false statement. Tenn. R.

Evid. 609(a)(2). The Advisory Commission Comment makes clear that only felony

convictions or misdemeanor convictions involving dishonesty or false statement “are

competent for impeachment.” Tenn. R. Evid. 609, Advisory Comm’n Cmt. “Evidence of

a conviction under this rule is not admissible if a period of more than ten years has elapsed

between the date of release from confinement and commencement of the action or

prosecution; if the witness was not confined, the ten-year period is measured from the date

of conviction rather than release.” Tenn. R. Evid. 609(b). Our courts have previously

recognized that aggravated robbery is a crime of dishonesty. See State v. Goad, 692 S.W.2d

32, 37 (Tenn. Crim. App. 1985); State v. Caruthers, 676 S.W.2d 935, 941 (Tenn. 1984).

Moreover, appellant’s prior conviction for aggravated robbery is not similar to second degree

murder. See State v. Michael Bailey, No, W2005-01815-CCA-R3-CD, 2007 WL 763212,

at *3 (Tenn. Crim. App. Mar. 13, 2007) (citing State v. Rickman, 876 S.W.2d 824, 828

(Tenn. 1994); State v. McCary, 922 S.W.2d 511, 514-15 (Tenn. 1996)) (noting that the risk

of a jury convicting the defendant of a crime based upon his bad character or propensity to

commit a crime is greater when the defendant’s prior bad acts are similar to the crime for

which the defendant is standing trial). Pursuant to Rule 609 of the Tennessee Rules of

Evidence, appellant’s aggravated robbery conviction was admissible to attack his credibility.

-15-

However, our inquiry does not end there. The State went on to question appellant

about whether the conviction involved violence. “Pursuant to Rule 609, evidence of a

witness’s prior conviction must be ‘limited to the fact of a former conviction and of what

crime, with the object only of affecting the credibility of the witness . . . .’” State v. Eddie

Elveton Robinson Gaston, No. E2004-01450-CCA-R3CD, 2006 WL 74149, at *25 (Tenn.

Crim. App. Jan. 13, 2006) (quoting State v. Taylor, 993 S.W.2d 33, 34 (Tenn.1999)). Thus,

the State’s line of questioning regarding the specifics of the offense may have been improper

if Rule 609 were the only rule pertaining to its admissibility.

Appellant attempted to establish through his testimony that the victim was the initial

aggressor and had a history of verbally abusing him and making sexual advances toward him.

We note that defendants in criminal cases may offer evidence of the victim’s character for

violence. See Tenn. R. Evid. 404(a)(2). A defendant is “entitled to show the state of mind

of the deceased so the jury could determine who was the true aggressor.” State v. Furlough,

797 S.W.2d 631, 649 (Tenn. Crim. App. 1990) (citing State v. Butler, 626 S.W.2d 6 (Tenn.

1981)). However, if a defendant has placed the victim’s character at issue, the State then

may offer character evidence about the defendant to rebut the same. See Tenn. R. Evid.

404(a)(1). “Rebuttal evidence is ‘any competent evidence which explains or is in direct reply

to or a contradiction of material evidence introduced by the accused.’” State v. Thompson,

43 S.W.3d 516, 524 (Tenn. Crim. App. 2000) (quoting Nease v. State, 592 S.W.2d 327, 331

(Tenn. Crim. App. 1979)). Because appellant placed the victim’s character for violence at

issue, character evidence about appellant’s character for violence was admissible to rebut the

same. See Tenn. R. Evid. 404(a)(1).

Generally, evidence of character or a trait of character must be admitted at trial by

testimony as to reputation or testimony in the form of an opinion. Tenn. R. Evid. 405(a).

Appellant effectively placed his own character for violence at issue during his trial. Under

the rule, the State could have rebutted appellant’s evidence about the victim’s character for

violence by presenting a witness to testify about appellant’s character for violence.

However, on cross-examination, the State asked appellant whether his conviction for

aggravated robbery involved a weapon, inferring that it was a violent act. Appellant denied

that he utilized a weapon in the aggravated robbery, whereupon trial counsel lodged an

objection. The trial court held a bench conference. The State argued that it had a right to

demonstrate that appellant had a violent history to rebut appellant’s attempt to place “all of

the aggression onto the victim.” The trial court inquired about the relevance, and the State

responded that it was trying to prove that appellant was the violent person in the prison cell.

After further conference, the trial court ruled that the State could question appellant as to

whether the aggravated robbery had “an element of violence to it” and instructed the State

to then “move on” because the evidence was not pertinent to the case. When the State

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resumed its questioning of appellant, it reworded the question and asked if the conviction

was a violent offense. Before a discernible answer was obtained, the trial court again

instructed the State to “move on.”

Under the facts of this case, no clear and unequivocal law was breached. Thus,

appellant is not entitled to plain error review. Moreover, because appellant neither confirmed

nor denied that violence was an element of his conviction, we conclude that consideration

of the error is not “necessary to do substantial justice.” Smith, 24 S.W.3d at 282 (citation

omitted). Accordingly, appellant is not entitled to plain error review of this issue.

2. Impeachment of Mr. Swenson

Appellant also takes issue with the State’s eliciting testimony that Mr. Swenson, a

defense witness, had a sexual battery conviction involving a child under the age of thirteen

and that he performed sexual favors for commissary. The State sought to impeach Mr.

Swenson’s testimony with evidence of his prior conviction. See Tenn. R. Evid. 609(a). As

previously noted, Rule 609 prohibits the offering of evidence of the facts and circumstances

underlying the crime. Eddie Elveton Robinson Gaston, 2006 WL 74149, at *25. The State

asserts that the fact that the victim was less than thirteen years old was also the basis for the

specific statutory form of aggravated sexual battery for which Mr. Swenson was convicted.

See Tenn. Code Ann. § 39-13-504(a)(4) (2010). Impeachment of Mr. Swenson regarding his

prior conviction only required asking if he had such a conviction. The purpose of using a

prior conviction to impeach a witness is to attack their character for truthfulness, thus, the

specific statutory form for the crime committed is of no consequence. “The theory of such

impeachment is that it goes to the credibility of the witness, since one who has committed

a crime is more likely to lie than is a person with a spotless record.” 10 David Louis Raybin,

Tennessee Practice: Criminal Practice & Procedure § 27:93 (2012-2013 ed.). The State

needed only to show that Mr. Swenson had a conviction for aggravated sexual battery to

impeach his credibility. Evidence regarding specific statutory form of aggravated sexual

battery was unnecessary to establish the fact that he had previously committed a crime. Thus,

the trial court’s allowing the State to question Mr. Swenson about the age of his victim was

improper and breached a clear and unequivocal rule of law.4

Appellant also takes issue with the State’s questioning Mr. Swenson regarding his

performing sexual acts for commissary while incarcerated. At trial, appellant presented the

testimony of Mr. Swenson to corroborate his claim of self-defense. Investigator Nadolski,

who investigated the incident between the victim and Mr. Swenson, also testified. Before

the State questioned Mr. Swenson regarding his performing sexual acts in exchange for

4

We note that appellant failed to lodge a contemporaneous objection at trial.

-17-

commissary, the trial court held a jury-out hearing during which Mr. Swenson testified.

During this offer of proof, Mr. Swenson denied performing sexual acts for the victim in

exchange for commissary. The court ruled that Mr. Swenson could present his testimony.

In the same jury-out hearing, Investigator Nadolski testified that his reports indicated Mr.

Swenson had performed sexual acts in exchange for commissary.

The State relies on Rule 608 of the Tennessee Rules of Evidence as a basis for

admissibility of this evidence:

Specific instances of conduct of a witness for the purpose of attacking or

supporting the witness’s character for truthfulness, other than convictions of

crime as provided in Rule 609, may not be proved by extrinsic evidence. They

may, however, if probative of truthfulness or untruthfulness and under the

following conditions, be inquired into on cross-examination of the witness

concerning the witness’s character for truthfulness or untruthfulness or

concerning the character for truthfulness or untruthfulness of another witness

as to which the character witness being cross-examined has testified.

The State’s reliance is misplaced. The hallmark of Rule 608 is that the specific instance of

conduct must be probative of truthfulness or untruthfulness. We cannot equate trading sexual

favors for commissary with untruthfulness. Tennessee Rule of Evidence 608 does not

provide an avenue for admissibility of this evidence. The introduction of this evidence was

improper and breached a clear and unequivocal rule of law.

Having concluded the trial court committed error by allowing the State to question Mr.

Swenson about the age of this victim and by permitting the State to elicit testimony from

Investigator Nadolski concerning Mr. Swenson’s trading sexual favors for commissary, this

court must now determine if errors require reversal of appellant’s conviction. See Tenn. R.

App. P. 36(b). Pursuant to Rule 36, this court will not set aside a final judgment unless,

“considering the whole record, error involv[ing] a substantial right more probably than not

affected the judgment or would result in prejudice to the judicial process.” Id. The

Tennessee Supreme Court has provided guidance on this issue, stating that

[t]he line between harmless and prejudicial error is in direct proportion to the

degree of the margin by which the proof exceeds the standard required to

convict beyond a reasonable doubt. Accordingly, when looking to the effect

of an error on the trial, we will evaluate that error in light of all of the other

proof introduced at trial. The more the proof exceeds that which is necessary

to support a finding of guilt beyond a reasonable doubt, the less likely it

-18-

becomes that an error affirmatively affected the outcome of the trial on its

merits.

State v. Gilliland, 22 S.W.3d 266, 273-74 (Tenn. 2000) (internal citations and quotations

omitted).

There is no question appellant killed the victim. Appellant attempted to assert self-

defense. However, the evidence demonstrated that appellant strangled the victim to death

and attempted to conceal the murder. Based on the record before us and the strong evidence

of appellant’s guilt, we cannot say that any error in allowing the State to question Mr.

Swenson about the age of his victim “more probably than not affected the judgment . . . .”

Tenn. R. App. P. 36(b). Neither did the State’s eliciting of evidence regarding Mr.

Swenson’s engaging in sexual acts in exchange for commissary “more probably than not

affect[ ] the judgment . . . .” Tenn. R. App. P. 36(b). Thus, these errors did not affect a

substantial right of the accused, and consideration of the error is not necessary to do

substantial justice. We decline to extend plain error review to these errors.

Upon review, we conclude that with regard to these claims of error, appellant has

failed to establish that a substantial right of the accused was adversely affected and that

consideration of the errors is necessary to do substantial justice. Thus, because appellant

cannot establish all of the Adkisson factors for each issue, he is not entitled to relief under

plain error review. Smith, 24 S.W.3d at 282.

B. False Testimony

Next, appellant argues that the false testimony of Ms. Futrell violated his due process

rights to a fair and impartial trial. Appellant alleges that Ms. Futrell’s testimony in which she

denied speaking with Nickie Jordan at Internal Affairs and also denied being reprimanded

or re-instructed regarding proper protocol as the “false testimony” the State used to convict

him. He further claims that Ms. Futrell’s in-court testimony regarding incidents that she did

not include in her statement to Mr. Jordan was false.

“It is a well established principle of law that the [S]tate’s knowing use of false

testimony to convict an accused is violative of the right to a fair and impartial trial as

embodied in the Due Process Clause of the Fourteenth Amendment to the United States

Constitution and Article I, §§ 8 and 9 of the Tennessee Constitution.” State v. Spurlock, 874

S.W.2d 602, 617 (Tenn. Crim. App. 1993) (citing Pyle v. Kansas, 317 U.S. 213 (1942);

Mooney v. Holohan, 294 U.S. 103 (1935); Hall v. State, 650 P.2d 893 (Okla. Crim. App.

1982)). The State has an affirmative duty to not present false testimony. See id. (citing

Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959); Blanton

-19-

v. Blackburn, 494 F.Supp. 895, 900 (M.D. La. 1980), aff’d, 654 F.2d 719 (5th Cir. 1981);

Hall v. State, 650 P.2d at 896)). The State further has a duty to correct false testimony once

it realizes that a witness has presented it. Id. To obtain a new trial based on false testimony,

appellant must show by a preponderance of the evidence that the State presented false

testimony, that the State knew the testimony was false, and that the testimony was “material.”

See State v. Ricky Alexander Nabors, No. 02C01-9404-CC-00065, 1994 WL 716247, at *2

(Tenn. Crim. App. Dec. 28, 1994); State v. Ricky Terrell Cox, No. W2007-01371-CCA-R3-

CD, 2009 WL 416000, at *12 (Tenn. Crim. App. Feb. 19, 2009).

Appellant first takes issue with Ms. Futrell’s denying that she spoke with Nickie

Jordan from Internal Affairs. Although Ms. Futrell denied specifically speaking with Nickie

Jordan, she admitted that she spoked with “some guy” regarding this incident. Ms. Futrell

said she was unsure of the person’s title or whether the person was with Internal Affairs.

Moreover, when presented with a copy of her statement and asked whether it was her

statement “that she gave to this guy or Nickie Jordan with Internal Affairs,” Ms. Futrell said

that it was her statement. Appellant has not met his burden of showing that Ms. Futrell’s

testimony that she did not speak with someone from Internal Affairs was false or material.

Defense counsel questioned Ms. Futrell regarding speaking with someone in Internal Affairs

in an attempt to highlight Ms. Futrell’s omission of a fact contained in the statement. Ms.

Futrell never denied giving her statement and was only unclear about to whom she gave her

statement. As the State notes in its brief, Ms. Futrell’s testimony that she did not speak with

Nickie Jordan in Internal Affairs was “imprecise or incomplete” at worst. “The presentation

of inaccurate testimony by a [S]tate’s witness does not equate to a showing that the [S]tate

knowingly sponsored false testimony.” State v. Charles E. Robinson, No. M2004-

01163-CCA-R3CD, 2005 WL 2008186, at *5 (Tenn. Crim. App. Aug. 17, 2005).

Moreover, assuming arguendo that Ms. Futrell’s testimony regarding to whom she

gave her statement was false, the testimony was not material. “In determining the materiality

of the testimony, the inquiry becomes whether a reasonable likelihood exists that the false

testimony could have affected the jury’s judgment.” Charles E. Robinson, 2005 WL

2008186, at *4 (citing Giglio, 405 U.S. at 154). Ms. Futrell admitted giving the statement

in question and identified the statement. Defense counsel cross-examined her about the

statement. Considering the fact that she admitted giving the statement and espoused the

contents of the statement as her own, no reasonable likelihood exists that Ms. Futrell’s

mistaken testimony about to whom she gave her statement affected the jury’s judgment.

Appellant further alleges that the State presented false testimony when Ms. Futrell

testified at trial regarding things that she did not include in her statement to investigators,

when she incorrectly stated the inmate counting protocol, and when she said that she did

nothing wrong and acted within protocol. However, appellant has not offered any proof

-20-

about how these statements were false. Defense counsel cross-examined Ms. Futrell

regarding her statement and the protocol for counting inmates. When witnesses give

contradictory testimony, the trier of fact determines which testimony is credible. Appellant

has not proven that Ms. Futrell perjured herself by testifying to things that she omitted from

her statement to investigators nor has he provided any proof that shows that Ms. Futrell

testified falsely concerning the protocol for counting inmates. Moreover, even if Ms. Futrell

perjured herself, appellant has not shown that the State knowingly presented the false

testimony.

According to appellant, “[t]he most blatant” false testimony occurred when Ms.

Futrell denied that she was reprimanded and received additional training in appropriate

inmate counting protocol. When asked whether she was “reprimanded or reinstructed on

proper count procedures” as a result of this incident, Ms. Futrell answered that she was not.

Appellant argues that Ms. Futrell’s testimony was contrary to the testimony of Agent

England, who stated that the warden informed him that he had verbally reprimanded and

talked to each correctional officer. Appellant asserts that either Ms. Futrell or Agent England

gave false testimony and that Ms. Futrell had a motive to lie. Appellant fails to recognize,

however, that Agent England also testified that whether an employee perceived the warden’s

talking to them about the incident as a reprimand depended on the tone of voice used and the

setting. Therefore, while the warden may have spoken to Ms. Futrell regarding the

procedures at the prison, Ms. Futrell may not have understood their conversation to be a

reprimand. Regarding Ms. Futrell’s receiving additional training, Agent England stated that

the warden told him that he was going to implement additional training for all officers.

However, Agent England further stated that he did not know whether the warden actually had

implemented the additional training. He also agreed that the new procedures applied to

everyone, and Ms. Futrell likely would not have considered them an action taken against her

only.

Appellant alleges several instances of the State’s presenting the false testimony of Ms.

Futrell, but he has failed to show by a preponderance of the evidence that the testimony was

indeed false or that the State knowingly presented false material evidence. Appellant

questioned Ms. Futrell, attempting to impeach her regarding her inconsistent statements. The

jury heard the testimony and weighed the credibility of the witnesses. By its verdict, the jury

obviously did not find that Ms. Futrell’s testimony was not credible or that any inconsistent

or false testimony outweighed the other evidence of appellant’s guilt. Accordingly, we

conclude that appellant is not entitled to relief on this issue.

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C. Prosecutorial Misconduct

Next, appellant claims that the State engaged in prosecutorial misconduct when it

made “several[,] often overlapping, plainly inflammatory, improper, prejudicial statements

during closing argument” that infringed on appellant’s constitutional rights. Specifically, he

asserts that during closing arguments, the prosecutor vouched for the credibility of witnesses,

intentionally inflamed or prejudiced the jury, gave a message to the community and an

“invitation to disregard jury instructions regarding lesser-included offenses,” and argued

facts outside of the record. The State responds that appellant has waived appellate review

of this issue because he failed to include this issue is his motion for new trial. Appellant

acknowledges the omission of this issue from the motion for new trial and asks this court to

review the issue for plain error.

Prosecutorial misconduct is an issue that appellants must raise in a motion for new

trial. State v. Howard, No. M2010-00578-CCA-R3-CD, 2011 WL 3480968, at *6 (Tenn.

Crim. App. Aug. 9, 2011), perm. app. denied (Tenn. Oct. 24, 2011) (citing Tenn. R.

App. P. 3(e)). “Thus, if this court is to review the claim of prosecutorial misconduct, we

must again do so through the process of “plain error” review embodied in Rule 36(b).” State

v. Robert Fusco, No. M2010-01724-CCA-R3-CD, 2012 WL 368224, at *9 (Tenn. Crim.

App. Feb. 3, 2012), perm. app. granted, cause remanded, (Tenn. Crim. App. Dec. 6, 2012).

“Rule 52(b) [of the Tennessee Rules of Criminal Procedure] leaves the decision to correct

the forfeited error within the sound discretion of the court of appeals, and the court should

not exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’” State v. Gann, 251 S.W.3d 446, 459 (Tenn. Crim. App.

2007) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). Again, we will only

consider an issue under plain error review if the error was “of such a great magnitude that

it probably changed the outcome of the trial.” State v. Smith, 24 S.W.3d 274, 283 (Tenn.

2000) (citing Adkisson, 899 S.W.2d at 642).

The record on appeal contains a transcript of closing argument, and the first factor for

plain error review is present. Next, we consider whether a clear and unequivocal rule of law

was breached. Initially, we note that “argument of counsel is a valuable privilege that should

not be unduly restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). Tennessee

courts give great latitude to counsel arguing their cases to the jury. Id. Thus, “trial judges

have wide discretion in controlling the argument of counsel, and their action will not be

reviewed absent abuse of that discretion.” Id. However, the comments of counsel 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. Lewter, No.

M2010-01283-CCA-RM-CD, 2011 WL 1197597, at *4 (Tenn. Crim. App. Mar. 31, 2011)

(quoting State v. Gann, 251 S.W.3d 446, 459 (Tenn. Crim. App. 2007)).

-22-

“A criminal conviction should not be lightly overturned solely on the basis of the

prosecutor’s closing argument.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008) (citing

United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d 411, 425 (Tenn.

2001) (holding that a prosecutor’s improper closing argument does not automatically warrant

reversal)). To establish reversible error and succeed on a claim of prosecutorial misconduct,

the appellant 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). When determining whether the argument

affected the jury’s verdict, we consider the following five 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; and (5) the relative strength or weakness of the case. Judge v.

State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)

This court has previously recognized five general areas 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.

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.

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

knowledge.

State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citations omitted).

Here, appellant asserts numerous instances where he believes that the prosecutor

vouched for the credibility of the witnesses and expressed his personal beliefs. Specifically,

-23-

appellant takes exception to the prosecutor’s stating (1) that he had a different recollection

of the evidence than opposing counsel; (2) that he found the victim’s allegedly asking

appellant for sexual favors “disgusting”; (3) that the killing was not self-defense and was

unlawful; (4) that appellant’s assertion that he put the victim in a headlock was incorrect; (5)

that he was “not saying that [appellant] was not in the right place”; (6) that the department

of correction staff was not at fault; and (7) that various witnesses’ testimonies were not

credible.

“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 he argues.” Goltz, 111 S.W.3d at

6-7 (citation omitted). During closing arguments, prosecutors must not interject their

personal beliefs or opinions, however, whether a prosecutor’s doing so qualifies as

misconduct is often dependent upon the specific terminology used. Gann, 251 S.W.3d at

460. “For example, argument predicated by the words “I think” or “I submit” does not

necessarily indicate an expression of personal opinion.” Id. (citing United States v. Stulga,

584 F.2d 142, 147 (6th Cir. 1978)).

After reviewing the prosecutor’s statements about which appellant complains, we

conclude that the prosecutor did not insert his personal beliefs or vouch for the credibility of

the witnesses during closing argument. The prosecutor attempted to discredit the defense

witnesses and expose inconsistencies in their testimonies; however, he did not offer his

personal opinion about the witnesses’ credibility. It is also noteworthy that during closing

argument, defense counsel stated, “[Ms. Futrell] lied in this courtroom. She got up there in

front of this jury in this courtroom and lied.” We do not see how the prosecutor’s suggesting

that the State’s witnesses were credible and the defense witnesses were incredible is any

more egregious than appellant’s assertion that Ms. Futrell was untruthful in her testimony.

Appellant also complains that the prosecutor inflamed the jury when he said, “I’m not

saying that [appellant] was not in the right place . . . .” “The prosecutor should not use

arguments calculated to inflame the passions or prejudices of the jury.” Goltz, 111 S.W.3d

at 6 (citations omitted). However, appellant fails to acknowledge that the prosecutor said this

regarding appellant’s not having a duty to retreat if attacked. We do not see how this

inflamed the jury. If anything, this bolstered appellant’s self-defense argument. The

prosecutor’s statement was not calculated to inflame the jury nor was it improper.

Next, appellant claims that the prosecutor “sent a message to the community” and

invited the jury to disregard the court’s instructions regarding lesser-included offenses. As

stated in a previous opinion of this court,

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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. Predictions as to the

consequences of an acquittal on lawlessness in the community also go beyond

the scope of the issues in the trial and are to be avoided.

Id. at 8. Appellant asserts that the prosecutor’s stating to the jury that he remembered things

differently than opposing counsel and the prosecutor’s stating, “Now, in my opinion, [lesser-

included offenses are] just a legal speech for giving the jury an easy way out. . . . [T]o let

[appellant] off on anything less than second degree murder is not doing right,” violated these

principles.

However, nothing about the prosecutor’s statements made a prediction about what

would happen in the community if the jury acquitted appellant. The prosecutor’s arguing that

the right thing for the jury to do was to convict appellant was not improper. Further, while

trial counsel’s comment regarding lesser-included offenses was inappropriate, said error was

harmless because the trial court properly instructed the jury regarding lesser-included

offenses. We presume that jurors follow the instructions of the trial court. State v. Cribbs,

967 S.W.2d 773, 784 (Tenn. 1998); State v. Laney, 654 S.W.2d 383, 389 (Tenn. 1983).

Therefore, any error in this regard did not affect the outcome of the trial.

Finally, appellant asserts that the prosecutor argued facts outside of the record during

closing argument. Specifically, appellant objects to the prosecutor’s statement that appellant

was serving a ten-year sentence “for an agg[.] robbery, a violent crime, where he either hurt

somebody or used a weapon.” He further objects to the prosecutor’s statement, “But if

there’s a sexual assault here, if there’s an attempt at rape, who was behind who? He was

behind Ricky Gardner. Whose pants were down?”

“It is unprofessional for a prosecutor to intentionally refer to or argue facts outside the

record unless the facts are matters of common public knowledge. Arguing facts outside the

record could involve a risk of serious prejudice.” Goltz, 111 S.W.3d at 9. Although there

are limitations on the scope and tenor of the arguments of counsel, “prosecutors, 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 inferences to be drawn from the

evidence, or make derogatory remarks or appeal to the jurors’ prejudices.” Banks, 271

S.W.3d at 131 (citations omitted).

Here, appellant’s prior conviction was properly admitted into evidence during the trial.

In closing argument, the prosecutor acknowledged the prior conviction and argued the

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inference that appellant either used a weapon or hurt someone, which are the two bases for

an aggravated robbery conviction. In addition, the evidence showed that the victim’s pants

were down and that appellant was behind the victim when he killed him. The prosecutor’s

arguments implicating appellant as the perpetrator of the possible sexual assault were

reasonable inferences drawn from the evidence and were not improper.

Appellant has failed to establish that any reversible prosecutorial misconduct occurred

and that there was a breach of a clear and unequivocal rule of law. Therefore, plain error

relief is not warranted, and we need not proceed with an examination of the remaining

Adkisson factors. See Smith, 24 S.W.3d at 283 (“[T]he presence of all five factors must be

established by the record before this Court will recognize the existence of plain error.”)

Accordingly, we conclude that appellant is not entitled to relief on this issue.

D. Sufficiency

It is undisputed that appellant killed the victim. However, appellant contends the

evidence was insufficient to convict him because it showed that he acted in self-defense,

thus, the killing was not unlawful. He claims that the evidence showed that the victim was

the primary aggressor who attacked appellant after appellant refused his sexual advances.

The State responds that the evidence was sufficient for the jury to reject appellant’s claim of

self-defense and find appellant guilty beyond a reasonable doubt of second degree murder.

We agree with the State.

The standard for appellate review of a claim challenging the sufficiency of the State’s

evidence is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

must demonstrate that no reasonable trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of

review is identical whether the conviction is predicated on direct or circumstantial evidence,

or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “‘we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.

2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and

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the weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

has afforded the State all reasonable inferences from the evidence and resolved all conflicts

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

As indicted in this case, second degree murder is a “knowing killing of another.”

Tenn. Code Ann. § 39-13-210 (2010).

“Knowing” means that a person acts knowingly with respect to the conduct or

to circumstances surrounding the conduct when the person is aware of the

nature of the conduct or that the circumstances exist. A person acts knowingly

with respect to a result of the person’s conduct when the person is aware that

the conduct is reasonably certain to cause the result.

Id. § 39-11-106 (2010). Appellant asserted self-defense as an affirmative defense to second

degree murder. Pursuant to Tennessee Code Annotated section 39-11-611(b)(2) (2010),

a person who is not engaged in unlawful activity and is in a place where the

person has a right to be has no duty to retreat before threatening or using force

intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent danger

of death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious bodily

injury is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.

Id. § 39-11-611 (2010).

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Viewed in the light most favorable to the State, there was sufficient evidence

presented by which to sustain appellant’s conviction of second degree murder. Appellant

admittedly killed the victim. The State presented proof that appellant strangled the victim

from behind using an arm-bar or choke-hold and that the victim’s body showed no other sign

of a struggle other than a broken fingernail. Furthermore, Agent England testified that there

was no sign of a struggle in the cell shared by appellant; an inmate housed in the next cell

testified that he heard no struggle; and corrections officers testified that they heard no

indication that appellant tried to summon them for help. The evidence further showed that

appellant concealed the murder by telling correction officers that the victim was asleep. He

went to eat breakfast after the murder and left the deceased victim in the cell. Appellant

posits that he acted in self-defense by subduing the victim when the victim charged at him

and hit him on the shoulder after he rejected the victim’s request for sexual favors.

Appellant’s argument raised a question of fact for the jury. By its guilty verdict on the

charge of second degree murder, the jury obviously rejected appellant’s affirmative defense.

Moreover, the jury clearly accredited the testimony of the State’s witnesses regarding the

incident over appellant’s version of events. In doing so, the jury resolved questions of

credibility of witnesses and factual disputes raised by the evidence. See Bland, 958 S.W.2d

at 659. We will not reevaluate the inferences drawn from the evidence by the jury or reweigh

the evidence. See Dorantes, 331 S.W.3d at 379. Accordingly, we conclude that appellant is

not entitled to relief on this issue.

E. Sentencing

Appellant argues that the trial court erred by ordering that he serve his sentence in this

case consecutively to his sentence in another case. Specifically, he argues that the trial court

did not make appropriate findings necessary to determine that he should serve his sentences

consecutively.

In determining an appropriate sentence, a trial court must consider the following

factors: (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 mitigating and enhancement factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement the defendant makes on his

own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn. Code Ann. §§ 40-

35-103(5), -113, -114, -210(b) (Supp. 2012). In addition, “[t]he sentence imposed should be

the least severe measure necessary to achieve the purposes for which the sentence is

imposed.” Tenn. Code Ann. § 40-35-103(4) (Supp. 2012).

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When an accused challenges the length and manner of service of a sentence, this court

reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn.

2012). If a trial court misapplies an enhancing or mitigating factor in passing sentence, said

error will not remove the presumption of reasonableness from its sentencing determination.

Id. at 709. This court will uphold the trial court’s sentencing decision “so long as it is within

the appropriate range and the record demonstrates that the sentence is otherwise in

compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,

under such circumstances, appellate courts may not disturb the sentence even if we had

preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging the

sentence imposed by the trial court has the burden of establishing that the sentence is

erroneous. Tenn. Code Ann. § 40-35-401 (Supp. 2012), Sentencing Comm’n Cmts.; State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The determination of whether an offender should be sentenced to consecutive or

concurrent sentences is within the sound discretion of the trial court. State v. Christopher

M. Black, No. M2010-02176-CCA-R3CD, 2011 WL 7562957, at * 5 (Tenn. Crim. App. Dec.

13, 2011), perm. app. denied (Tenn. May 16, 2012) (citing State v. James, 688 S.W.2d 463,

465 (Tenn. Crim. App. 1984). See Bise, 380 S.W.3d at 708. Tennessee Code Annotated

section 40-35-115, in relevant part, permits the trial court to order consecutive sentencing if

it finds by a preponderance of the evidence that the defendant “is a dangerous offender

whose behavior indicates little or no regard for human life, and no hesitation about

committing a crime in which the risk to human life is high.” Tenn. Code Ann.

§ 40-35-115(b)(4) (Supp. 2012). However, “when a trial court uses the ‘dangerous offender’

factor, it must also decide whether consecutive sentences (1) reasonably relate to the severity

of the offenses committed; (2) serve to protect the public from further criminal conduct by

the offender; and (3) are congruent with general principles of sentencing.” State v. Alder,

71 S.W.3d 299, 307 (Tenn. Crim. App. 2001) (quoting State v. Wilkerson, 905 S.W.2d 933,

939 (Tenn. 1995)).

Here, the trial court found that appellant was a dangerous offender whose behavior

indicated little or no regard for human life and that appellant had no hesitation about

committing a crime in which the risk to human life was high when ordering consecutive

sentences. See Tenn. Code Ann. § 40-35-115(b)(4). However, the court focused only on the

statutory language of the “dangerous offender” category and did not make the specific

findings required by Wilkerson.

We agree with the trial court’s finding that appellant’s behavior indicated little or no

regard for human life and that appellant had no hesitation about committing a crime in which

the risk to human life was high. Tenn. Code Ann. § 40-35-115(b)(4). The record shows that

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appellant choked the victim with his bare hands while incarcerated at a correctional facility.

Appellant did so because the victim allegedly hit him on the shoulder and asked him for a

sexual favor. The evidence further showed that appellant moved the victim’s body because

it was “in the way,” concealed the murder by telling correction officers that the victim was

asleep, and went to eat breakfast after the murder, leaving the deceased victim in the cell.

Moreover, despite the trial court’s failure to make the requisite Wilkerson findings, our

review of the record reveals that the aggregate length of the appellant’s sentence reasonably

relates to the severity of his offenses. Appellant murdered his cellmate while incarcerated for

a violent crime. If appellant had no hesitation about committing murder while incarcerated,

the public certainly needs to be protected from him. Finally, we conclude that consecutive

sentencing in this case is congruent with the principles of sentencing. The record

demonstrates that the appellant is a dangerous offender and consecutive sentencing is

appropriate. Appellant is not entitled to relief on this issue.

CONCLUSION

Our review of the record reveals no reversible error in the trial court proceedings.

Accordingly, we affirm the judgment of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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