State of Tennessee v. Larry Edward Moore, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 9, 2009

STATE OF TENNESSEE v. LARRY EDWARD MOORE, JR.

Direct Appeal from the Criminal Court for Davidson County

No. 2007-A-514 Monte Watkins, Judge

No. M2008-00703-CCA-R3-CD - Filed February 10, 2010

Following a jury trial, Defendant, Larry Edward Moore, Jr., was convicted of carjacking, a

Class B felony. The trial court sentenced Defendant as a Range III, career offender, to thirty

years. On appeal, Defendant challenges the sufficiency of the convicting evidence and also

argues that the trial court erred (1) in not redacting certain statements from Defendant’s

statement to the police which was introduced as an exhibit at trial; (2) in limiting Defendant’s

cross-examination of the victim about her use of drugs and whether she had received any

compensation from the Victim’s Compensation Fund; and (3) in denying Defendant’s motion

for a mistrial. After a thorough review, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES and

J.C. M CL IN, JJ., joined.

Dawn Deaner, District Public Defender; Emma Rae Tennent, Assistant Public Defender;

Ginny Flack, Assistant Public Defender; and Katie Weiss, Assistant Public Defender,

Nashville, Tennessee, for the appellant, Larry Edward Moore, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney

General; Victor S. (Torry) Johnson III, District Attorney General; Deborah Housel, Assistant

District Attorney General; and Latasha Alexander, Assistant District Attorney General, for

the appellee, the State of Tennessee.

OPINION

I. Background

Alysia Blackburn, the victim, testified that on December 27, 2006, she went to a

jewelry store on Gallatin Road at approximately 4:15 p.m. to inquire about adjusting a

bracelet she had received as a birthday present the day before. The victim left the engine to

her grey 1999 Nissan Altima running while she went into the store. From inside the store,

the victim observed Defendant walk by and look at her vehicle, so she went outside, turned

the engine off, and locked the vehicle. The victim returned to the store, and Defendant

entered the business as she was talking to the store’s owner, Howard Lane. Defendant asked

Mr. Lane if he could use Mr. Lane’s telephone to call his wife because his vehicle would not

start. When Defendant was unsuccessful in reaching his wife, the victim asked Defendant

if she could help, and Defendant responded, “Yeah.” The victim and Defendant got into the

victim’s Altima, and Defendant directed her to drive to a house on Riverwood Drive. The

victim said that Defendant told her that he “really appreciate[d] it.” The victim stated that

she was “just being nice” because she had previously been in a similar situation.

The victim pulled into the driveway indicated by Defendant and began to feel uneasy.

The victim stated that Defendant suddenly struck her several times in the face. The victim

struggled with Defendant as he attempted to move from the passenger seat to the driver’s

seat. The victim reached for her purse in the backseat, and Defendant struck her again. The

victim stated that she gave up at that point and ceased struggling. She got out of the Altima,

and Defendant drove off.

Eugene Skaggs came out of his house and asked the victim if she was all right. The

victim said that she was crying, and she told Mr. Skaggs that Defendant had stolen her

vehicle. The victim stated:

[a]nd they kept staring at me, and I’m like, “Is my face messed up?” And he

was, like, “Yes, ma’am.” So that really made me cry. And I knew that my

family [was] going to be upset because I tried to help somebody out.

The victim said that Mr. Skaggs had trouble understanding her because her face was

swollen. Mr. Skaggs called the police and the victim’s family. The victim was transported

to the hospital by ambulance, and the emergency technician was concerned that the victim’s

jaw was broken. The victim told police officers that Defendant’s vehicle was parked at the

jewelry store. The victim also told them that her purse was in her vehicle, and it contained,

among other items, $212, two cell phones, and a debit card.

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The records for the victim’s cell phone were introduced as an exhibit at trial and

showed that an outbound call was made with the victim’s cell phone at 5:22 p.m. on

December 27, 2006. The victim stated that she did not recognize the telephone number

which received the call. The victim said that she identified Defendant as the perpetrator from

a photographic lineup on December 27, 2006.

The victim stated that her jaw was not broken, but her face was bruised and swollen

for approximately one and one-half weeks, and people had difficulty understanding her when

she tried to speak. The victim said that she never recovered her Altima or any of the items

in the vehicle. The victim stated that she did not give Defendant permission to take her

vehicle.

On cross-examination, the victim acknowledged that she did not tell the investigating

officers that she observed Defendant looking at her vehicle before he entered the store. The

victim stated that she did not report the theft of the credit cards to her bank and

acknowledged that she was never notified that the credit cards had been used. The victim

said that Defendant told Mr. Lane that the alternator on his vehicle was not working, and Mr.

Lane and Defendant discussed the location of the nearest car parts store. The victim

acknowledged that Defendant did not make any threatening remarks on the drive to

Riverwood Drive, and she described him as “nice.”

Mr. Skaggs testified that he lived at 1140 Riverwood Drive. Mr. Skaggs stated that

he was working at his computer on December 27, 2006, when he noticed on his computer

screen the reflection of a vehicle pulling into his driveway. Mr. Skaggs did not recognize the

vehicle and thought the driver would turn around. Mr. Skaggs observed a man and woman

in the vehicle and believed at first that the man was slapping the woman playfully. Mr.

Skaggs then realized that the man was striking the woman, and he went outside. Mr. Skaggs

said that the man got out of the vehicle and pulled the victim out. The man then got back in

the vehicle and drove off. Mr. Skaggs said that he gave the victim ice for her face and called

911. Mr. Skaggs stated that he was unable to identify the man who drove off in the victim’s

vehicle.

Howard Lane testified that he owned a jewelry store on Gallatin Road. Mr. Lane

knew the victim because she had visited the store before the incident. Mr. Lane said that the

victim stopped by the store on December 27, 2006, to check on a bracelet’s repair. Mr. Lane

said that Defendant entered the store while he was talking to the victim and asked to use Mr.

Lane’s telephone because his vehicle would not start. Mr. Lane handed Defendant his cell

phone, but Defendant was not able to reach anyone. Mr. Lane described Defendant as

“cordial,” and he, the victim, and Defendant conversed between ten and fifteen minutes. Mr.

Lane said that the victim did not have any injuries to her face while she was in the store. Mr.

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Lane later identified Defendant from a photographic lineup as the man who left his store with

the victim on December 27, 2006.

Officer Jason L. Smith, with the Metro Nashville Police Department, stated that the

victim was “crying and very afraid” when he arrived at the residence on Riverwood Drive.

Officer Smith observed a contusion on the victim’s cheek which was bleeding. Based on the

information provided by the victim and Mr. Skaggs, Officer Smith drove to the jewelry store

on Gallatin Road. He located a van matching the victim’s description and recorded the

vehicle’s VIN, which he relayed to Detective Michael Windsor with the Metro Police

Department. On cross-examination, Officer Smith acknowledged that on his incident report,

he indicated that the victim had sustained an “apparent minor injury.”

Detective Windsor interviewed the victim at the hospital. Detective Windsor testified

that the victim had a large amount of swelling around her cheek and a small laceration in the

middle of the swelling. Detective Windsor identified the owner of the van parked near Mr.

Lane’s jewelry store through its VIN. Detective Windsor developed Defendant as a suspect

based on the information received from the vehicle’s owner. Detective Windsor prepared

a photographic line-up, and the victim identified Defendant as the perpetrator.

Detective Windsor arrested Defendant on December 28, 2006. Defendant was read

his Miranda rights and executed a written waiver of those rights. A redacted version of the

videotape of Defendant’s interview was played for the jury. Detective Windsor stated that

he determined that the outbound call made by the victim’s cell phone on December 27, 2006,

at 5:22 p.m. was made to Defendant’s home telephone number.

II. Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to support his conviction of

carjacking. Specifically, Defendant contends that the evidence failed to show that Defendant

used either force or intimidation to take the victim’s vehicle. Defendant submits that at most

he is guilty of the unauthorized use of a vehicle.

When a defendant challenges the sufficiency of the convicting evidence, we must

review the evidence in a light most favorable to the prosecution in determining whether a

rational trier of fact could have found all the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

Once a jury finds a defendant guilty, his or her presumption of innocence is removed and

replaced on appeal with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn.

1991). The defendant has the burden of overcoming this presumption, and the State is

entitled to the strongest legitimate view of the evidence along with all reasonable inferences

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which may be drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). The jury is presumed to have resolved all conflicts and drawn any reasonable

inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

Questions concerning the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not

this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to

findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination

of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.

Crim. App. 1990).

Before considering Defendant’s challenge to the sufficiency of the convicting

evidence, we observe that we were unable to review the redacted videotape of Defendant’s

statement to the police which was introduced as Exhibit 6 at trial and played for the jury.

The video tape would only play in “fast forward” mode making it impossible to follow the

interview. We glean from the record that certain portions of Defendant’s statement,

primarily those concerning Defendant’s comments about his prior convictions, imprisonment,

and drug use, were redacted before the videotape was introduced as an exhibit at trial.

Defense counsel was aware that there was a problem with the videotape as reflected in her

motion filed with this Court on December 31, 2008. Within this motion, defense counsel

informed this Court that when she attempted to view Exhibit 6 after trial, she was unable to

play back the recording, but she did not provide any clarification as to the type of problem

she encountered. Defense counsel stated, however, that she was able to produce a viewable

DVD copy of the videotape containing the redacted version of Defendant’s statement.

Defense counsel explained that “[c]oncerned that this Court and the Attorney General may

face similar difficulties playing the VHS tape, [she was] seeking to have the trial court certify

the DVD as a supplemental exhibit to the record in this case, pursuant to T.R.A.P. 24(e).”

There is no indication, however, that defense counsel followed through with this intention.

In her brief, defense counsel said that she was unable to include the DVD in the record on

appeal because the State refused to stipulate to the accuracy of the DVD.

Rule 24(e) of the Tennessee Rules of Appellate Procedure, provides:

[i]f any matter properly includable is omitted from the record . . . or is

misstated therein, the record may be corrected or modified to conform to the

truth. Any differences regarding whether the record accurately discloses what

occurred in the trial court shall be submitted to and settled by the trial court

regardless of whether the record has been transmitted to the appellate court.

The record may be corrected or modified “at any time, either pursuant to stipulation

of the parties or on the motion of a party or the motion of the trial or appellate court.” Tenn.

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R. App. P. 24(e), Comm’n Cmts. Thus, notwithstanding the State’s unwillingness to enter

into a stipulation as to the contents of the DVD, it appears that defense counsel did not take

the necessary steps in the trial court to insure a complete record on appeal.

It is the responsibility of appellant to prepare an accurate and complete record of what

transpired in the trial court with respect to each and every issue that forms the basis for the

appeal. Tenn. R. App. P. 24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v.

Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Nonetheless, we conclude that the

record is sufficient under the facts of this case to permit meaningful review of this issue, and,

in the interests of justice, we do so.

Carjacking, as charged in this case, “is the intentional or knowing taking of a motor

vehicle from the possession of another by use of . . . [f]orce or intimidation.” T.C.A. § 39-

13-404(a)(2). “‘Force’ means compulsion by the use of physical power or violence and shall

be broadly construed to accomplish the purposes of this title.” Id. § 39-11-106(12).

Defendant’s unredacted statement, which was introduced as Exhibit 1 at the

suppression hearing but not at trial, is included in the record on appeal. In his statement,

Defendant admitted to the investigating officers that he took the victim’s vehicle without her

permission, but he insisted that force was not involved. Defendant said that the victim

charged him twenty dollars for the ride, drove him to a residence on Riverwood Drive, and

then exited the vehicle, leaving the car keys and her belongings behind. Defendant waited

for her return for a few minutes and then drove back to the jewelry store to check on his van.

Defendant stated that he returned to Riverwood Drive, waited a few minutes more, and then

drove away in the victim’s vehicle. Defendant said that he left the vehicle in the parking lot

of a gas station near the jewelry store with the keys in the ignition. During his interview,

Defendant repeatedly denied striking or otherwise intimidating the victim to gain access to

the vehicle.

Viewing the evidence in a light most favorable to the State, however, the victim

testified that she offered Defendant a ride when he was unable to reach anyone after his

vehicle failed to start. Defendant directed the victim to a residence on Riverwood Drive.

After the victim pulled into the residence’s driveway, Defendant struck her in the face several

times as he attempted to climb into the driver’s seat from the passenger seat. The victim said

that she struggled with Defendant but eventually gave up when Defendant struck the victim

one last time as she attempted to retrieve her purse from the backseat. The victim exited the

car, and Defendant drove off. Mr. Skaggs observed Defendant strike the victim while he and

the victim were inside the car. Mr. Skaggs stated that the man inside the vehicle immediately

drove off after the victim exited the vehicle, and Mr. Skaggs rendered assistance to the

victim. Mr. Skaggs described the injuries the victim sustained as a result of her encounter

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with Defendant. The victim testified that neither her vehicle nor her other personal

belongings contained in it were recovered.

The weight and credibility of the State witnesses’ testimony and the reconciliation of

conflicts in their testimony, if any, are matters entrusted exclusively to the jury as the trier

of fact. By its verdict, the jury obviously found the testimony of the State’s witnesses to be

credible, and rejected Defendant’s description of his interaction with the victim on December

27, 2006. Defendant’s conduct of striking the victim repeatedly in the face until she

relinquished control of her vehicle is sufficient to support a finding that Defendant

intentionally and knowingly took possession of the victim’s vehicle without her permission

and with the use of force. Based on our review, we conclude that a rational trier of fact could

find beyond a reasonable doubt that Defendant was guilty of the offense of carjacking.

Defendant is not entitled to relief on this issue.

III. Evidentiary Issues

A. Redactments from Videotaped Statement

Defendant argues that the trial court erred in not redacting certain comments from his

videotaped statement which he made about his wife during the interview. Defendant

contends that such statements were not relevant to a material issue at trial and were

prejudicial because they cast him in a bad light before the jury.

The trial court conducted a pre-trial hearing concerning Defendant’s request for

redactions, and the State agreed to redact Defendant’s comments about his prior criminal

history and his use of drugs, and Detective Windsor’s comments about the potential charges

Defendant was facing. Defendant then requested the redaction of his comments about his

wife, and the following colloquy occurred:

THE COURT: You’re saying it’s just not relevant?

[DEFENSE COUNSEL]: Whether he gets along with his wife or not is

completely irrelevant to this incident.

THE COURT: Well, that’s basically true but [does] it fall within

the area where it should be redacted? I mean,

irrelevant information comes in at trial all the

time.

...

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[DEFENSE COUNSEL]: It’s irrelevant, and the point is its prejudicial.

THE COURT: Well, that’s the point I’m making, whether its

prejudicial.

After further discussion, the trial court stated that it would make a final ruling on the

day of trial but it does not appear from the record that the trial court ruled on Defendant’s

motion. The State introduced Defendant’s redacted videotaped statement during Detective

Windsor’s direct examination as Exhibit 6 without further objection by Defendant. Prior to

playing the videotape for the jury, the State requested a bench conference in the presence but

out of the hearing of the jury which was not transcribed. The videotape was then played,

again without further objection by Defendant.

It appears that the trial court’s initial response to Defendant’s objection was that the

challenged evidence was not relevant, but that Defendant had failed to show that it was

prejudicial. See Tenn. R. Evid. 401 (defining “relevant evidence” as “evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence”). Although as

the trial court observed, irrelevant evidence may make its way into a trial, this generally

occurs only when the party against whom the evidence is offered fails to object. See State

v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000) (quoting State v. Harrington, 627 S.W.2d 345,

348 (Tenn.1981)) (holding that “[w]hen a party does not object to the admissibility of

evidence . . . the evidence becomes admissible notwithstanding any other Rule of Evidence

to the contrary, and the jury may consider that evidence for its ‘natural probative effects as

if it were in law admissible’”). Our rules of evidence, however, clearly provide that

“[e]vidence which is not relevant is not admissible.” Tenn. R. Evid. 402.

Nonetheless, it does not appear that the trial court made a definitive ruling on the

admissibility of the challenged statements before the videotape of Defendant’s redacted

statement was played for the jury, nor does the record indicate that Defendant renewed his

objection prior to the playing of the videotape to the jury. Once a trial court “makes a

definitive ruling on the record admitting or excluding evidence, either at or before trial, a

party need not renew an objection or offer of proof to preserve a claim of error for appeal.”

Tenn. R. Evid. 103(a)(2). As this Court has cautioned, however, “where the ‘issues are only

tentatively suggested or the record only partially and incompletely developed in connection

with a motion in limine, . . . [c]ounsel necessarily take some calculated risks in not renewing

objections.” State v. Alder, 71 S.W.3d 299, 302 (Tenn. Crim. App. 2001) (quoting State v.

McGhee, 746 S.W.2d 460, 462 (Tenn. 1998)); see also Tenn. R. App. P. 36 (a) (providing

that “[n]othing in this rule shall be construed as requiring relief be granted to a party

responsible for an error or who failed to take whatever action was reasonably available to

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prevent or nullify the harmful effect of an error”). Also hindering our review is the fact that

we do not have a reviewable copy of the redacted version of Defendant’s statement to the

police, and we, therefore, do not know which portions were redacted and which were not.

When the record is incomplete on an issue or does not contain the proceedings relevant to

an issue, this court is precluded from considering the issue. Tenn. R. App. P. 13(c); Miller,

737 S.W.2d at 558; State v. Griffin, 649 S.W.2d 9, 10 (Tenn. Crim. App. 1982); State v.

Hoosier, 631 S.W.2d 474, 476 (Tenn. Crim. App. 1982). Moreover, because the record does

not clearly establish what occurred in the trial court, Defendant may not find relief under a

plain error analysis. Tenn. R. App. P. 36(b); State v. Adkisson, 899 S.W.2d 626, 641-42

(Tenn. Crim. App. 1994). Based on the foregoing, we conclude that Defendant has waived

appellate review of this issue and is not entitled to relief.

B. Victim’s Compensation Fund

Defendant argues that the trial court erred in not allowing him to cross-examine the

victim about her claim for criminal victim’s injury compensation under Tennessee Code

Annotated section 29-13-101, et. seq. During the victim’s cross-examination, the following

colloquy occurred:

[DEFENSE COUNSEL]: Now, we’ve talked about some of the things that

you lost out on, and that were missing from you,

not, of course, the least of which was the car.

You applied for and got a check from the victim’s

compensation fund, right?

[THE VICTIM]: Yes, ma’am.

[THE STATE]: Judge, I’m going to object to the relevance on

this.

THE COURT: Sustained.

[DEFENSE COUNSEL]: That’s fine.

[THE STATE]: Thank you, your Honor. I’d ask that that be

stricken.

THE COURT: Members of the jury, strike that question and

answer. It has nothing to do with this case.

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Defendant did not respond to the State’s objection nor object to the trial court’s ruling.

To the contrary, Defendant simply responded, “That’s fine,” and did not make an offer of

proof with regard to the excluded evidence. Instead, Defendant abandoned this line of

questioning when the victim’s cross-examination was resumed. Based on our review, we

conclude that Defendant has failed to properly preserve this issue for appeal. See Tenn. R.

App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party

responsible for an error or who failed to take whatever action was reasonably available to

prevent or nullify the harmful effect of an error.”); State v. Rhoden, 739 S.W.2d 6, 12 (Tenn.

Crim. App. 1987) (finding waiver where “no effort was made to advise the trial court of the

evidence the appellant would seek to introduce at trial or make an offer of proof so an

informed ruling could by made by the trial judge). Defendant is not entitled to relief on this

issue.

C. Limitation of the Victim’s Cross-Examination

Defendant argues that the trial court’s exclusion of evidence that the victim used drugs

violated his constitutional right to present a defense. Defendant submits that there was a

factual basis for the inquiry, and that such evidence “would have corroborated crucial

elements of the defense.” Defendant also contends that the trial court improperly invaded

the province of the jury by making its own assessment of the victim’s credibility during the

jury out hearing and encroached upon Defendant’s right to trial by jury.

The victim filled out a medical questionnaire pertaining to a CT Scan at the hospital

after the incident. The questionnaire asked, “Do you smoke?” The victim wrote, “Yes.”

Beside the question, “If yes, number of years,” the victim wrote, “4.” In response to the

question, “Packs per day,” the victim wrote “marijuana.” The victim did not answer the next

question, “If you have quit smoking, when?” The State, anticipating Defendant’s intent to

cross-examine the victim about her drug usage based on these responses, asked for a hearing

out of the presence of the jury before the victim was called to testify on direct examination.

The State essentially sought to exclude the evidence on relevancy grounds. During the offer

of proof, the victim explained that she wrote the number “4" on the medical form because

she stopped using marijuana four years prior to filling out the form. The victim testified that

she did not use drugs in 2006, and specifically did not use drugs on December 27, 2006. On

cross-examination, the following colloquy occurred:

[DEFENSE COUNSEL]: The first line says “Do you smoke,” right?

[THE VICTIM]: Yes, ma’am.

[DEFENSE COUNSEL]: It doesn’t say, “Did you smoke,” does it?

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[THE VICTIM]: No, ma’am.

[DEFENSE COUNSEL]: Okay. And you took that to mean that it would be

relevant that you smoked four years ago?

[THE VICTIM]: Actually, to be honest, I wasn’t really paying

attention. . . . I was in a state of shock. And all

my life I’m always in a rush to do anything, so I

was just writing.

At the jury-out hearing, Defendant argued that the victim’s drug usage was relevant

because it addressed “the motive for this event” which Defendant described as “a strange

crime.” Based on the victim’s testimony during the offer of proof, Defendant also argued

that the discrepancy between the victim’s responses on the medical questionnaire and her in-

court explanation of the responses called into question the victim’s credibility.

At the conclusion of the offer of proof, the trial court found:

Well, this, really, sort of blends several issues, one of which is 404

issues, as to whether this matter has probative value, whether it’s relevant in

this particular case. Under 404 unless it fits under one particular – any

particular exception – this is not a matter that needs to go to the jury . . .

because you’re trying to prove – it basically goes to the character of the person.

And the Court simply believes, with respect to the 404 issue, it is not a relevant

matter and should be excluded.

Now what about the issue of credibility? The Court is always

concerned about a witness’s credibility. But again, here is a case where

whether she smokes marijuana, or does not smoke marijuana, or smoked

marijuana in the past, the Court doesn’t see that as a credibility issue. I think

the argument being made by the defense is whether her answers to particular

questions raised an issue of credibility. She is the one who answered the direct

questions that she had not smoked for at least four years, did not smoke that

day, or during that month, and didn’t smoke that day in particular because she

worked two jobs, apparently meaning that she couldn’t smoke and work two

jobs as well at the same time. So – witnesses are, obviously, presumed to be

truthful. Her explanation for how she interpreted the questions and the reasons

for the answers she gave, those have to, basically, be accepted by the Court.

I will allow this to be made a separate exhibit for other purposes, but making

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that a fact issue at trial, the Court just doesn’t see that that is appropriate,

because this really doesn’t have anything to do with the trial itself.

Our supreme court has recognized that “[t]he Sixth Amendment and the Due Process

Clause of the Fourteenth Amendment clearly guarantee a criminal defendant the right to

present a defense.” State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000). A defendant’s

constitutional right to confront the witnesses against him includes the right to conduct

meaningful cross-examination. State v. Wyrick, 62 S.W.3d 751, 770 (Tenn. Crim. App.

2001). Denial of the defendant’s right to effective cross-examination is “‘constitutional error

of the first magnitude’” and may violate the defendant’s right to a fair trial. State v. Hill, 598

S.W.2d 815, 819 (Tenn. Crim. App. 1980) (quoting Davis v. Alaska, 415 U.S. 308, 318, 94

S. Ct. 1105, 1112 (1974)). “The propriety, scope, manner and control of the cross-

examination of witnesses, however, rests within the sound discretion of the trial court.” State

v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995); Coffee v. State, 216 S.W.2d 702,

703 (1948). Furthermore, “a defendant’s right to confrontation does not preclude a trial court

from imposing limits upon cross-examination which take into account such factors as

harassment, prejudice, issue confrontation, witness safety, or merely repetitive or marginally

relevant interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994).

In State v. Brown, our supreme court set forth the necessary analysis when

determining whether the constitutional right to present a defense has been violated by the

exclusion of evidence. Brown, 29 S.W.3d at 433-434. Specifically, we must consider

“whether: (1) the excluded evidence is critical to the defense; (2) the evidence bears

sufficient indicia of reliability; and (3) the interest supporting exclusion of the evidence is

substantially important.” Id. at 434.

“[W]hether excluded evidence is critical to a defense is a fact-specific inquiry.” State

v. Flood, 19 S.W.3d 307, 317 (Tenn. 2007) (citing Chambers v. Mississippi, 410 U.S. 284,

303, 93 S. Ct. 1038, 1049 (1973)). “Our supreme court has suggested that for evidence to

be considered critical to the defense, the evidence must have some probative value and

‘exclusion of the evidence would undermine an element of a particular defense.’” State v.

Cyntoia Denise Brown, No. M2007-00427-CCA-R3-CD, 2009 WL 1038275, at *29 (Tenn.

Crim. App., at Nashville, Apr. 20, 2009), perm. to appeal denied (Tenn. Sept. 28,

2009)(quoting Flood, 219 S.W.3d at 317). Regarding the third Brown factor, the interests

supporting exclusion of the evidence, a criminal defendant’s right to confront and cross-

examine witnesses against her or him is limited by Rule 402 of the Tennessee Rules of

Evidence in that neither party “may cross-examine a witness on matters that are irrelevant.”

State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996). As our supreme court has

observed, “the right to confront witnesses is satisfied if defense counsel receives wide

latitude at trial to cross-examine, because the confrontation clause only guarantees ‘an

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opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense may wish.’” State v. Middlebrooks, 840

S.W.2d 317, 332-33 (Tenn. 1992), superceded by statute on other grounds as stated in State

v. Stout, 46 S.W.3d 689, 705 (Tenn. 2001).

Relevant evidence is defined as “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. Under Tennessee Rule

of Evidence 402, irrelevant evidence is not admissible. Relevant evidence is generally

admissible but may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice. See id. 402, 403. A trial court’s evidentiary ruling based on

relevance is reviewed on appeal for an abuse of discretion. See State v. Dubose, 953 S.W.2d

649, 652 (Tenn. 1997).

i. Character Evidence

At the hearing, the trial court found that the victim’s use of drugs was character

evidence that was not relevant and, therefore, inadmissible under Rule 404 of the Tennessee

Rules of Evidence. Defendant argues, however, that “evidence that the victim used drugs

regularly, used drugs that day, or was seeking to buy drugs would have corroborated crucial

elements of his defense.” That is, the evidence would corroborate “the suggestion raised in

[Defendant’s] statement that his interactions with the victim were drug-related,” and “would

have undermined the account of events presented by the State.” Defendant points out that

he told Detective Windsor that the victim charged him twenty dollars for the ride, the victim

drove to a residence on Riverwood Drive, the victim exited her vehicle and never returned.

Generally, Rule 404(a) provides that “[e]vidence of a person’s character or a trait of

character is not admissible for the purpose of proving action in conformity therewith.” Tenn.

R. Evid. 404(a). Nonetheless, evidence of a victim’s character may be admissible under

certain circumstances. For example, under Rule 404(a)(2), the defendant in a criminal case

may offer “evidence of a pertinent trait of character” of the victim. “Evidence is called

‘pertinent’ when it is directed to the issue or matters in dispute, and legitimately tends to

prove the allegations of the party offering it.” Black’s Law Dictionary 1145 (6th ed. 1990).

In other words, to qualify as “pertinent,” the character evidence must be relevant. Id.

According to Defendant’s unredacted statement, which is the only reviewable copy

of Defendant’s videotaped statement in the record on appeal, Detective Windsor asked

Defendant why the victim would leave him unattended in her vehicle with her purse and car

keys for an expended period of time. Defendant said that he believed the victim simply

wanted his twenty dollars. Defendant stated that he did not know if the victim had a drug

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problem like himself, but explained that he did not believe the victim wanted his money to

purchase drugs. Defendant said that he did not think the house on Riverwood Drive was a

“drug house” because it was “not that kind of neighborhood.” Defendant later insisted

during the interview that the incident “didn’t have nothing [sic] to do with drugs.”

The record on appeal does not indicate whether these comments were redacted from

Defendant’s statement before the videotaped statement was played for the jury. Nonetheless,

Defendant’s theory at trial focused on his suggestion that his altercation with the victim was

prompted by some event other than the taking of her vehicle. Defendant contends that

information concerning the victim’s use of drugs would provide circumstantial evidence to

support his suggestion that the reason he struck the victim was drug-related. Defendant’s

theory of defense at trial, however, was just that, a suggestion based solely on the argument

of counsel. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim .App. 1988) (citations

omitted) (observing that the arguments of counsel are not evidence); State v. Calvin Lee

Sneed, No. 03C01-9611-CR-00444, 1998 WL 309137, at *10 (Tenn. Crim. App., at

Knoxville, June 12, 1998), perm. to appeal denied (Tenn. Feb. 16, 1999) (concluding that

testimony that the victim “knew how to push [the defendant’s] button” was pertinent

character evidence when the proof at trial fairly raised the issue of adequate provocation in

a first degree murder case). There was no evidence presented at trial that drugs were in any

way related to the offense, and defense counsel did not attempt during the offer of proof to

establish any causal connection between the victim’s use of marijuana, whether current or

prior, and the taking of her vehicle. Any suggested connection, standing alone, between the

victim’s use of drugs and Defendant’s culpability for the charged offense is too tenuous for

this testimony to be considered critical to the defense. We conclude that the trial court did

not err in excluding the evidence on this basis.

ii. Victim’s Credibility

Defendant argues that the trial court improperly based its evidentiary rulings during

the offer of proof on its own assessment of the victim’s credibility. Defendant submits that

by finding that the victim’s explanations as to the responses on the medical questionnaire

“have to be accepted by the court,” the trial court prevented the jurors “from making a fair

and informed judgment of the crucial witness’s credibility” in violation of Defendant’s Sixth

Amendment right to trial by jury.

We agree with Defendant’s argument to the extent that the procedure utilized by the

trial court during the hearing was improper in part. The function of an offer of proof is to

demonstrate the substance, purpose, and relevance of the excluded evidence so that the trial

court may make an informed ruling. Alley v. State, 882 S.W.2d 810, 815 (Tenn. Crim. App.

1994). In so doing, however, it is well established that the jurors are the sole arbiter of

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credibility issues. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Thus, “[a]ny

withholding of a factual issue from the jury’s determination because of judicial disbelief [or

belief] of a witness would invade the province of the jury and impinge upon a defendant’s

constitutional right to trial by a jury.” State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim.

App. 1993).

At the jury-out hearing, the State essentially argued that potentially damaging

impeachment evidence is not “relevant” if it is shown during an offer of proof that the

evidence is either “not true” or can be “explained away.” However, these are factors that are

reserved for exploration during redirect examination if, indeed, the challenged evidence is

relevant and its probative value is not outweighed by its prejudicial effect. Tenn. R. Evid.

402, 403. If the trial court found that evidence of the victim’s drug use, whether prior or

current was relevant, it could not then exclude the evidence because the trial court believed

the witness’s explanation as to why she answered the medical questions as she did. In other

words, a trial court cannot find otherwise relevant evidence irrelevant based on its assessment

of the witness’s credibility during the jury-out hearing.

Although the victim’s drug use was inadmissible as substantive evidence under Rule

404(a)(2), evidence of a witness’s character may be admissible under Rules 607 and 608 as

impeachment evidence. Rule 607 of the Tennessee Rules of Evidence provides that “the

credibility of a witness may be attacked by any party.” Rule 608(b) of the Tennessee Rules

of Evidence provides that:

[s]pecific instances of conduct of a witness for the purpose of attacking or

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

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

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

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

concerning the witness’s character for truthfulness or untruthfulness. . . .

Tenn. R. Evid. 608(b).

This Court, however, has previously found that a witness’s use of drugs is not

probative of truthfulness or untruthfulness. State v. Bledsoe, 626 S.W.2d 468, 470 (Tenn.

Crim. App. 1981); Hatchett v. State, 552 S.W.2d 414, 415 (Tenn. Crim. App. 1977); State

v. Craig Stephen Bourne, No. 03C01-9807-CR-00237, 1999 WL 826016, at *8 (Tenn. Crim.

App., at Knoxville, Oct. 18, 1999), perm. to appeal denied (Tenn. Apr. 24, 2000); State v.

Tommy Mack Blevins, No. 01C01-9501-CC-00010, 1995 WL 408263, at *2 (Tenn. Crim.

App., at Nashville, July 6, 19995), perm. to appeal denied (Tenn. Nov. 6, 1995). In Hatchett,

this Court observed:

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[t]he simple possession of marijuana is a misdemeanor. . . . This is not a crime

involving moral turpitude, or a crime of such character that the conviction

itself would discredit the testimony of the defendant. There is no connection

between the use or possession of marijuana and the veracity of a witness.

Hatchett, 552 S.W.2d at 415 (citations omitted).

Defendant also submits that the medical questionnaire was a prior inconsistent

statement admissible pursuant to Rule 613. See Tenn. R. Evid. 613 (providing that

“[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless

and until the witness is afforded an opportunity to explain or deny the same and the opposite

party is afforded an opportunity to interrogate the witness thereon, or the interests of justice

otherwise require”). Thus, in order to introduce the medical questionnaire as extrinsic

evidence, Defendant must first ask the victim during cross-examination if she used drugs.

Because this question is not proper impeachment evidence under Rule 608(b), Defendant

may not pose an otherwise irrelevant question as a prelude for introducing the medical

questionnaire under Rule 613. A party “cannot ask a witness an irrelevant but prejudicial

question, and then, under the theory of impeachment, predicate a second irrelevant and

prejudicial question upon the [witness’s] response to the first question.” State v. Adkisson,

899 S.W.2d 626, 646 (Tenn. Crim. App. 1994); see also State v. Leech, 148 S.W.3d 42, 56

(Tenn. 2004) (“Impeachment by extrinsic evidence as contemplated by Rule 613 must relate

to facts relevant to a material issue at trial.”); State v. Jones, 15 S.W.3d 880, 892 (Tenn.

Crim. App. 1999) (observing that “[i]mpeachment cannot be a ‘mere ruse’ to present to the

jury prejudicial or improper testimony”); Hatchett, 552 S.W.2d at 415 (concluding that

because the question concerning the defendant’s prior drug use was not proper for

impeachment purposes under Rule 608(b), a follow-up question concerning the defendant’s

prior conviction for possession of marijuana after the defendant denied that he used drugs

was also improper).

Based on a thorough review of the record, we conclude that although the trial court’s

procedure during the jury-out hearing was improper in part, the grounds advanced by

Defendant at the jury-out hearing for admitting the evidence of the victim’s drug use at trial

were ultimately determined to be inadmissible on the basis of the rules of evidence and not

an assessment of the victim’s credibility. Defendant is not entitled to relief on this issue.

IV. Closing Argument

Defendant argues that the trial court erred in not granting his request for a mistrial on

the basis that the prosecutor impermissibly commented on Defendant’s decision not to testify

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at trial. The State contends that its comments during rebuttal closing argument were a direct

response to Defendant’s comments during his counsel’s closing argument.

During closing argument, Defendant pointed out the inconsistencies between the

testimony of the victim, Mr. Skagg, and Mr. Lane and stated:

[b]ut you heard the testimony. And you must be left with part of you thinking,

“they didn’t, this wasn’t, that’s not what happened. [Defendant and the victim]

left together in this car and what occurred in this car, we simply don’t know

because [the State] didn’t bother to find out.

During rebuttal closing argument, the State responded as follows:

[THE STATE]: And when the defendant was asked, “What was

wrong with your van,” the defendant said, “uh-uh,

it overheated.” When he had already said to

another witness, [the victim], it was the alternator.

Was it overheated? Was it the alternator? Who

knows? Did he walk by Ms. Blackburn’s car and

see it filled with Christmas [gifts] and think, “I

want that?” I don’t know. That’s something that

the defendant can tell us, but he didn’t tell –

[DEFENSE COUNSEL]: I am going to object, Your Honor.

[THE STATE]: He did not tell Detective Windsor when he was –

THE COURT: Well, he didn’t testify, obviously.

[DEFENSE COUNSEL]: He has no obligation to prove anything.

THE COURT: Yes. Obviously he has no obligation to testify.

[DEFENSE COUNSEL]: Not just to testify. To prove anything, to present

any evidence in his case.

THE COURT: I understand that, [defense counsel]. All right.

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[THE STATE]: He didn’t tell Detective Windsor that. You didn’t

hear that. He said a whole bunch of things to

Detective Windsor, but he didn’t say that.

At the conclusion of the State’s rebuttal closing argument, Defendant requested the

trial court to declare a mistrial based on the foregoing comments by the prosecutor, which

the trial court denied.

A mistrial should be declared in criminal cases only in the event that a manifest

necessity requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App.

1991). In other words, a mistrial is an appropriate remedy when a trial court cannot continue

without causing a miscarriage of justice. State v. McPherson, 882 S.W.2d 365, 370 (Tenn.

Crim. App. 1994). The decision to grant a mistrial lies within the sound discretion of the trial

court, and that decision will not be overturned on appeal absent a clear abuse of that

discretion. State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998) (citing State v. Adkins, 786

S.W.2d 642, 644 (Tenn. 1990)). The burden of establishing the necessity for a mistrial lies

with the party seeking it. State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

Closing argument is a valuable tool for the parties during the trial process. State v.

Humphreys, 70 S.W.3d 752, 767 (Tenn. Crim. App. 2001). Attorneys are generally given

wide latitude in the scope of their arguments. State v. Berry, 141 S.W.3d 549, 586 (Tenn.

2004). Consequently, a trial court is accorded wide discretion in its control of the closing

arguments. State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). We will not

interfere with that discretion in the absence of abuse. State v. Sutton, 562 S.W.2d 820, 823

(Tenn. 1978). To show error, a defendant must show that the argument was so inflammatory

or the conduct so improper that it affected the verdict to the defendant’s detriment. Zirkle,

910 S.W.2d at 888.

It is well established that “[a] prosecutor is strictly prohibited from commenting on

the defendant’s decision not to testify.” State v. Thacker, 164 S.W.3d 208, 244 (Tenn. 2005)

(citing State v. Reid, 91 S.W.3d 247, 297 (Tenn. 2002)). However, it is well-established that

“a district attorney general may argue that the State’s evidence is uncontradicted. [Such]

argument does not violate the rule prohibiting comments on the failure of the defendant to

testify in support of his defense.” State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App.

1999 (citing State v. Rice, 638 S.W.2d 424 (Tenn. Crim. App. 1982).

It appears from the record that the prosecutor could have been heading in the direction

of making an improper comment on Defendant’s decision not to testify. However, after

Defendant’s prompt objection in the middle of the prosecutor’s sentence, the prosecutor

concluded with “did not tell Detective Windsor.” See State v. Reid, 91 S.W.3d 247, 296

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(Tenn. 2002) (concluding that it was not improper closing argument for the prosecutor to

comment on Defendant’s failure to explain the presence of his fingerprints on the victim’s

property during his statement to the police which was videotaped and played for the jury).

Based on our review, we conclude that the prosecutor’s closing comments do not warrant a

mistrial. Accordingly, the trial court did not abuse its discretion in denying Defendant’s

request for a mistrial. Defendant is not entitled to relief on this issue.

CONCLUSION

After a thorough review, we affirm the judgment of the trial court.

_________________________________

THOMAS T. WOODALL, JUDGE

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