State of Tennessee v. Terrence Mccray

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 7, 2006

STATE OF TENNESSEE v. TERRENCE MCCRAY1

Direct Appeal from the Criminal Court for Shelby County

No. 04-00223 W. Otis Higgs, Jr., Judge

No. W2005-00479-CCA-R3-CD - Filed September 5, 2006

A Shelby County Criminal Court jury convicted the appellant of second degree murder, and the trial

court sentenced him to fifteen years in confinement. In this appeal, the appellant claims (1) that the

evidence is insufficient to support the conviction; (2) that the trial court erred by refusing to declare

a mistrial after a State witness’s “theatrics”; (3) that the trial court committed plain error by not

giving a curative instruction or declaring a mistrial after a courtroom spectator’s outburst; (4) that

the trial court erred by refusing to allow the defense to present evidence of the victim’s prior arrest

for domestic violence; (5) that the trial court erred by allowing the State to impeach the appellant

with his prior arrests and letters written from jail; (6) that the trial court erred by allowing the State

to cross-examine him about his statement to a police officer; (7) that the trial court committed plain

error by allowing the prosecutor to testify during the State’s closing argument; and (8) that the State

committed plain error by implying during closing argument that the appellant had a duty to retreat

before he could claim that he shot the victim in self-defense. Upon review of the record and the

parties’ briefs, we affirm the judgment of trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY

L. SMITH , JJ., joined.

Robert Wilson Jones and Phyllis Aluko (on appeal) and Kindle Nance and Robert Felknor (at trial),

Memphis, Tennessee, for the appellant, Terrence McCray.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; William

L. Gibbons, District Attorney General; and Tom Hoover and Michael McCusker, Assistant District

Attorneys General, for the appellee, State of Tennessee.

1

Throughout the record, the appellant’s first name is spelled “Terrance.” However, for the purposes of this

opinion, we will use the name that appears in the indictment, “Terrence McCray.”

OPINION

I. Factual Background

This case relates to the appellant’s shooting his girlfriend’s uncle, Harpreett “Happy” Kaleka,

on July 6, 2003. Tara Brown, the victim’s niece, testified that the appellant dated her sister, Teresa

Monger. In 1996, the victim had married Tara’s and Teresa’s aunt and the couple lived in

Michigan.2 On July 4, 2003, Tara’s family celebrated the holiday at her mother’s house in Memphis.

The victim drove from Michigan to Memphis for the holiday, but his wife did not come with him.

On July 5, Teresa and the appellant drove from their home in Mississippi to Memphis to visit the

family. That evening, Tara; Teresa; their brother, Prince Monger; the victim; and the appellant went

to Beale Street to celebrate Tara’s birthday. However, security guards would not let Prince onto

Beale Street because he was only nineteen years old, and the group decided to go to Harbor Town.

Tara, Prince, and the victim drove to Harbor Town in the victim’s car while Teresa and the appellant

drove to Harbor Town in Teresa’s car.

The group parked their cars in a dark parking lot next to the river. At some point, the victim

asked Teresa to go to the store and buy beer for him. Teresa and the appellant went to the store,

bought the beer, and returned to the parking lot. When the group got ready to leave, Prince was in

the backseat of the victim’s car, and Tara opened the door to get in the car. Teresa was standing near

the victim’s car, and the appellant was standing near Teresa. Tara testified that she heard the

appellant say, “That n***** act like he don’t like me.” Tara asked Prince, “What did he say?” The

appellant repeated the statement and, without warning, shot the victim in the back of the head. The

victim immediately dropped to the ground. Tara said that the victim and the appellant had not talked

to each other during the day and that she did not notice any ill feelings between them. After the

shooting, the appellant pointed the gun and told Teresa to give him her car keys. Teresa threw down

the keys, and the appellant got into Teresa’s car. He threw the gun out of the window and drove

away.

On cross-examination, Tara Brown testified that on the afternoon of the shooting, she,

Teresa, the appellant, and the victim drove to Prince’s place of employment to pick him up from

work. They also went to a liquor store, where the victim bought two half-gallons of liquor. She

stated that the victim bought the liquor for another family member and that she did not see the victim

drink any of the alcohol. Later that evening, everyone drank a beer at Harbor Town. She said that

she did not know why the victim’s blood alcohol content (BAC) was .208 at the time of his death

because she saw the victim drink only one beer. She said that she saw the appellant shoot the victim.

2

Because two witnesses share the last name “Monger,” we have elected to utilize first names for the purpose

of brevity. W e intend no disrespect to these individuals.

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Prince Monger testified that on July 5, 2003, he spent the day working at a Kroger store.

About 4:00 p.m., Teresa, Tara, the victim, and the appellant picked him up from work. Everyone

was relaxed during the drive home, and Prince saw no interaction between the victim and the

appellant. Later that evening, the group went to Beale Street. However, Prince could not get onto

Beale Street because of his age. The group decided to go to Harbor Town to have fun and relax.

When they got there, everyone started walking around and talking on their cellular telephones. At

some point, Teresa and the appellant left to go to the store for beer. When they returned, Teresa and

the appellant “stayed off to the side most of the time.” The group got ready to leave, and Prince got

into the backseat of the victim’s convertible. The victim was standing between his open car door

and the car, and the appellant was walking around. The appellant started pacing in a circle and said,

“I don’t think he likes me.” The appellant pulled up his shirt, Prince saw a flash, and the victim

dropped to the ground. Prince said that the appellant’s hand was extremely close to the victim’s head

at the time of the shooting. On cross-examination, he testified that he never saw the victim and the

appellant talk to each other.

Teresa Monger testified that she met the appellant in January 2003 and that she lived with

him and his mother in Lambert, Mississippi. On July 5, 2003, she and the appellant drove from

Lambert to her mother’s house in Memphis. When they arrived, she introduced the victim to the

appellant and told the victim that she and the appellant were going to be married the following

month. Later, the appellant told Teresa that the victim liked her. About 6:00 p.m., Teresa, Tara, the

appellant, and the victim went to pick up Prince from work. While they were waiting for Prince to

come out of a Kroger store, the victim and Tara went into a nearby liquor store and the victim bought

alcohol. Teresa never heard the victim and the appellant argue but heard the appellant ask the victim

why he had slammed the car door.

Teresa Monger testified that the group went to Beale Street about 9:30 p.m. and then drove

to Harbor Town. They parked their cars in a parking lot, got out, and looked at the river. About five

or six other cars were in the lot. The victim asked Teresa to go to the store for him, and Teresa and

the appellant drove to the store. They returned to Harbor Town, and everyone sat around and talked

while the victim and the appellant each drank a beer. About midnight, the group got ready to leave.

The victim opened his car door, and the appellant said, “This guy’s got a problem with me.” Teresa

did not think the appellant was talking about the victim and told the appellant to “go and cool off.”

The appellant said he would and walked away. Tara and Teresa began looking at clothes in Teresa’s

car trunk and then walked toward the victim’s car. The appellant closed the trunk of Teresa’s car,

Teresa heard a gunshot, and the victim fell in front of her. Tara and Prince said, “Terrance just shot

Happy.” The appellant told her to give him her car keys and pulled her arm. Prince took the keys

from Teresa and threw them, and the appellant drove away. Teresa said that the victim and the

appellant did not appear to be drunk and that she did not see the appellant shoot the victim. On

cross-examination, Teresa testified that she did not remember seeing the victim drink alcohol on July

5.

Officer Shawn Keane of the Memphis Police Department testified that in the early morning

hours of July 6, 2003, he was on patrol downtown and responded to a call that a person had been

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shot. When he arrived at Harbor Town, witnesses told him that the appellant shot the victim in the

head and fled the scene. At daylight, the police found a gun near the river. He said that none of the

witnesses reported hearing the victim and the appellant argue.

Sergeant Robert Acred of the Memphis Police Department testified that he was dispatched

to Harbor Town on July 6 to assist with the investigation. When he arrived, he began looking for

a pistol but was not able to find it in the dark. At daylight, Sergeant Acred found a pistol along the

rocky riverbank.

Officer David Payment of the Memphis Police Department testified that on July 6, he

responded to a homicide at Harbor Town. He arrived at the scene about 1:00 a.m., took

measurements, put up crime scene tape, and collected evidence. He also photographed the scene and

collected a gun. He said that the neck of the revolver was broken and that he could not unload the

pistol. Officer Payment later called a gunsmith to the police department’s property room to unload

the gun. The gun was a six-shot .22 caliber pistol and held five live rounds and one spent shell. He

stated that the damage to the gun was consistent with the gun’s having been thrown onto a solid

object. On cross-examination, he said that to his knowledge, no fingerprints were recovered from

the gun. He said that he did not know how long the gun had been outside or if the appellant had used

it to kill the victim.

Sergeant Eddie Bass of the Memphis Police Department testified that he was called to the

scene of the shooting and was one of the first detectives to arrive. Sergeant Bass learned from

witnesses at the scene that the appellant was the suspected shooter and may be driving to Mississippi.

Sergeant Bass broadcasted the appellant’s name and a description of Teresa Monger’s car over the

police radio. While Bass was still at the scene, he learned that the appellant had been taken into

custody by a Southaven, Mississippi police officer. Later, Sergeant Bass went to the Southaven

police station to get the appellant’s name, birth date, social security number, and address for an

investigative report.

Memphis Police Department Sergeant Anthony Mullins testified that he was the coordinator

in the case and took the pistol recovered from the scene to the Tennessee Bureau of Investigation

(TBI) Laboratory. The TBI conducted ballistics tests on the gun and compared test-fired bullets to

the bullet recovered from the victim. The TBI found that the markings on the bullet recovered from

the victim were similar to the characteristics of the gun but could not say conclusively that the gun

fired the bullet.

Dr. O.C. Smith testified that he was the Shelby County Medical Examiner at the time of the

shooting and performed the victim’s autopsy. The bullet entered the victim’s head above his left ear,

and the victim died of the wound. Dr. Smith found stipple on the victim’s skin, indicating that the

gun was within two feet of the victim when it was fired. He said that after the bullet entered the

victim’s brain, it broke into two pieces and lodged between the victim’s brain and skull. The small

caliber bullet traveled left to right and slightly upward. After the shooting, the victim would have

been incapacitated but would have been able to breathe and swallow for a short time while his heart

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continued to beat. On cross-examination, Dr. Smith testified that he could not say conclusively that

the bullet was a .22 caliber. He said the victim weighed about two hundred nine pounds and had a

BAC of .208. He said that assuming the victim had been drinking on an empty stomach over a two-

hour period, the victim would have had to consume fourteen or fifteen alcoholic drinks to have a

BAC that high. He said that a person becomes under the influence with a BAC of .05. He stated that

the victim’s autopsy revealed that the victim’s liver cells were accumulating fatty material, indicating

that the victim may have abused alcohol over a period of time. However, the victim did not have

cirrhosis of the liver.

Cory Stevenson testified for the appellant that in the early morning hours of July 6, 2003, he

was at a park in Harbor Town and was shooting fireworks. He heard “a little argument” and

“hollering, it seemed like it got a little louder.” Stevenson looked to see what was going on and saw

the victim lying on the ground. He got in his car, drove closer to the scene of the shooting, and saw

the victim lying next to the victim’s car. On cross-examination, Stevenson testified that he was “a

couple of cars” away from the shooting and heard hollering and screaming.

Sheralyn Williams-Burton, Cory Stevenson’s finacee, testified that she and Stevenson were

at the park about midnight on July 6. She heard “arguing, kind of frantic type tones.” About ten

minutes later, Williams-Burton heard women screaming and crying, and she and Stevenson drove

closer to the scene. She acknowledged that it was fairly dark at the park and said that she never

heard a gunshot.

Mary “Tina” Kaleka, the victim’s wife, testified that the victim was the kindest man she had

ever met. She said that the victim sometimes drank alcohol.

The appellant testified that he met Teresa Monger in 2002 and that they were going to be

married in July 2003. On July 5, 2003, Teresa wanted the appellant to go with her to Memphis. The

appellant did not want to go because Teresa had a spare tire on her car, and he thought the tire might

be unsafe. The appellant did not want Teresa driving to Memphis by herself, so he finally agreed

to go with her. When they got to Teresa’s mother’s house, Teresa introduced him to the victim. The

victim gave Teresa money for a new tire, and Teresa and the appellant went to get the tire. When

they returned to Teresa’s mother’s home about 3:00 p.m., the victim, Teresa, and Tara drank some

wine. About 5:00 p.m., the appellant, Teresa, Tara, and the victim went to pick up Prince from

work. While they were waiting in the car for Prince, the victim “was slamming the car door, like he

didn’t know whether he wanted to get out, or not.” The victim slammed the car door two or three

times, and the appellant asked the victim to stop slamming the door. The victim looked at the

appellant “with a funny look” but stopped slamming the door. Tara and the victim got out of the car

to go into a nearby liquor store, and the victim slammed the door again. The appellant told Teresa

that the victim was acting drunk.

The appellant testified that the victim bought a gallon of gin and another bottle of brown

liquor from the liquor store. Prince got into the car, and the group stopped by a convenience store,

where Tara bought cups and ice. They poured liquor into the cups, drank on the way back to

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Teresa’s mother’s house, and continued to drink at the home. About 9:30 p.m., the group drove

downtown, with Tara, the victim, and Prince in one car and Teresa and the appellant in Teresa’s car.

When Prince could not get onto Beale Street, the group went to Harbor Town. The appellant and

Teresa walked to the boat ramp to talk and then returned to the parked cars. The victim asked Teresa

to get more beer, and Teresa and the appellant drove to the store. When they returned, the appellant,

the victim, and Teresa each drank a beer. Teresa and Tara began looking in the trunk of Teresa’s car,

and the appellant sat down in Teresa’s car. The victim walked up to the appellant and said, “What’s

up[?]” The victim then pointed his finger and said, “Who is you to tell me something” and “I’ll kill

you.” The appellant thought the victim was mad at him for the appellant’s having told the victim

to stop slamming the car door earlier. The appellant stood up, and the victim said, “I’ll kill you, you

don’t know me.” The victim walked to his car and said, “Hold up.” The victim opened his car door

and bent down, and the appellant saw something in the victim’s hand. The appellant said that he got

scared and “just shot.” He said that he had been carrying the gun for protection because he and

Teresa would be driving back to Mississippi at night. He said that he got the gun from a relative and

that he did not have a license to carry it.

The appellant testified that after the shooting, he threw the gun toward the river. He told

Teresa that he was frightened and told her to take him home. Prince threw Teresa’s keys at the

appellant, and the appellant drove away. He said that he did not wait for the police to arrive because

he was frightened and that he did not return to the scene because he “had just blanked out.” On the

interstate, a Southaven police officer stopped the appellant and told him to put his hands up. The

officer put the appellant into his patrol car and drove the appellant to the police station. The

appellant said that he had a prior Minnesota conviction for shoplifting.

On cross-examination, the appellant acknowledged talking with a police officer and that the

officer asked for his name and address. However, he denied telling the officer that he shot the victim

because he was overcome with jealousy. He acknowledged writing letters to Teresa from jail and

that one of the letters said, “So please, sweetheart, just say no to the questions that you think will hurt

me in the courtroom.” He also acknowledged that in a second letter, he wrote, “You can say that you

did not see me [shoot] that man and that would help me a lot, sweetheart.” He said that he did not

remember being arrested in 1995 or 2000 for second degree assault or being arrested in 1997 for

aggravated robbery.

On rebuttal, Sergeant Eddie Bass testified that he went to the Southaven police station and

asked the appellant his name, social security number, and birth date. He said the appellant became

“very dramatic” and started crying. The appellant told Sergeant Bass that “Happy was moving in

on my woman” and “I know he’s been visiting my woman the last couple of days.” The appellant

told Sergeant Bass that he got mad but did not mean to shoot the victim. On cross-examination,

Sergeant Bass testified that at the time of the appellant’s statement, the appellant had not been

charged with a crime and Sergeant Bass was only trying to get information about the appellant’s

identity. He said he never advised the appellant of Miranda rights but did not ask the appellant any

questions about the case. He said that the next day, he wrote down the appellant’s statement but lost

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the writing. Although the appellant was charged with first degree premeditated murder, the jury

convicted him of second degree murder, a Class A felony.

II. Analysis

A. Sufficiency of the Evidence

The appellant claims that the evidence is insufficient to support the conviction because the

proof showed that he shot the victim in self-defense. He also contends that, at most, the jury could

convict him of voluntary manslaughter, which is the “intentional or knowing killing of another in

a state of passion produced by adequate provocation.” See Tenn. Code Ann. § 39-13-211(a). The

State claims that the evidence is sufficient. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard for

review by an appellate court 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, 99 S. Ct. 2781, 2789 (1979); Tenn. R.

App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all

reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value

to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the

trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or

reevaluate the evidence, nor will this court substitute its inferences drawn from the circumstantial

evidence for those inferences drawn by the jury. Id. Because a jury conviction removes the

presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal

with one of guilt, a convicted defendant has the burden of demonstrating to this court that the

evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

To sustain the appellant’s conviction for second degree murder, the State was required to

prove that the appellant knowingly killed the victim. See Tenn. Code Ann. § 39-13-210(a)(1). “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.” Tenn. Code Ann. § 39-11-302(b).

Taken in the light most favorable to the State, the proof at trial revealed that Tara, Teresa,

Prince, the appellant, and the victim went to Harbor Town after Prince could not get onto Beale

Street. There, the grouped talked and drank beer. Neither Tara, Teresa, nor Prince saw the victim

and the appellant argue or exchange harsh words. However, the witnesses testified that the appellant

appeared to be upset, pacing and saying that the victim did not like him. They also said that, without

warning, the appellant shot the victim in the head. Officer Keane testified that none of the witnesses

reported hearing the victim and the appellant argue. Sergeant Bass also testified that the appellant

admitted shooting the victim because he was overcome with jealousy. Although one witness

testified that she heard an argument about ten minutes before the shooting, she was not an eyewitness

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to the shooting and was some distance away from the scene. Based upon the evidence, we conclude

that the jury had ample evidence to convict the appellant of second degree murder.

The appellant contends that the jury should have found that he acted in self-defense.

Self-defense is essentially a fact question for the jury. See State v. Clifton, 880 S.W.2d 737, 743

(Tenn. Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). In this case,

the appellant claimed that the victim walked to his car, bent down, and had something in his hand.

However, the evidence showed that the victim was shot while he was standing beside his car, and

no weapon was found on or near the victim. The jury, as was its prerogative, chose not to credit the

appellant’s theory of self-defense. We will not second-guess the factual determination of the jury.

B. Tara Brown’s “Theatrics”

The appellant claims that the trial court erred by refusing to declare a mistrial after Tara

Brown’s “theatrics” during her direct testimony. Although the trial court gave a curative instruction,

the appellant claims that the instruction did not eliminate the prejudice caused by Tara’s statements

and behavior. The State claims that the trial court properly denied the appellant’s request for a

mistrial. We agree with the State.

During Tara’s direct testimony, the State showed her a picture of the victim’s car. According

to the trial transcript, Tara began to sob uncontrollably. The judge told the jury to step out of the

courtroom, and Tara said, “God why did he do it? God, why did he do it?” The trial court told the

jury that it was going to recess for lunch. Meanwhile, Tara twice cried out, “God help us, Jesus.

Please.” The jury left the courtroom, and the trial court instructed a member of Tara’s family “to try

to control her.” Tara then stated, “Why did you take him from us?” and fell onto the floor.

After lunch, the appellant requested a mistrial. The appellant explained to the trial court that

Tara’s “explosive display of emotions” had occurred while the jury was still in the courtroom and

that Tara had fallen onto the floor while some of the jurors had been exiting the courtroom. The

appellant argued that a mistrial was warranted because Tara’s display had prejudiced the jury against

him. The State argued that a mistrial was not necessary because the appellant had admitted to

shooting the victim, and Tara’s statement had not hurt the defense’s position that the appellant shot

the victim in self-defense. After a recess, the trial court overruled the appellant’s motion for a

mistrial, but gave the jury the following instruction:

Ladies and gentlemen, the Court instructs you that in regard to the

testimony of the last witness, Tara Brown, and her emotional

outburst, the jury in no case should have any sympathy, or prejudice,

or allow anything but the law and the evidence to have any influence

upon you in determining your verdict. You should render your

verdict with absolute fairness and impartiality as you think truth and

justice dictate.

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Tara’s testimony resumed without further incident.

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).

In this case, the record reflects that as soon as Tara started sobbing uncontrollably, the trial

court said, “Let’s take a recess” and told the jurors to step out of the courtroom. When the jury

returned to the courtroom, the trial court instructed the jury that Tara’s outburst was to have no effect

on its verdict. The jury is presumed to have followed the instructions of the trial court. See State

v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994). We conclude that the trial court did not

err by refusing to grant the appellant’s request for a mistrial. In any event, any error is harmless in

light of the overwhelming evidence of the appellant’s guilt. See Tenn. R. Crim. P. 52(a); Tenn. R.

App. P. 36(b).

C. Spectator’s Outburst

The appellant claims that the trial court erred by failing to declare a mistrial or give a curative

instruction after a courtroom spectator’s outburst. The State claims that the appellant is not entitled

to relief. We agree with the State.

During the appellant’s direct testimony, there was an outburst by a courtroom spectator. The

trial transcript does not reveal what the spectator said. The defense made no objection, and the

appellant’s testimony continued. Before the appellant’s cross-examination, the trial court decided

to take a recess. The trial court sent the jury out of the courtroom and told the audience, “Now, I’m

going to give you a word of warning, if you cannot handle this trial, stay out. Stay out in the hall,

if you can’t handle it. I don’t want any more of that to happen again.”

Initially, we note that the appellant failed to move for a mistrial or request a curative

instruction. Our rules do not require “relief [to] 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.” Tenn. R. App. P. 36(a). The appellant also did not include this issue in his motion for new

trial. See Tenn. R. App. P. 3(e). Thus, he has waived the issue. Nevertheless, he contends that this

court should address his claim under the plain error doctrine. Tennessee Rule of Criminal Procedure

52(b) provides that this court may address “[a]n error which has affected the substantial rights of an

accused . . . at any time, even though not raised in the motion for a new trial . . . where necessary to

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do substantial justice.” See also Tenn. R. Evid. 103(d). When determining whether an error

constitutes plain error, the following factors should be considered:

(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. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see also

State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for determining plain

error). The presence of all five factors must be established, and consideration of all the factors is not

necessary when it is clear from the record that at least one of the factors cannot be established.

Smith, 24 S.W.3d at 283. Furthermore, the error “‘must be of such a great magnitude that it

probably changed the outcome of the trial.’” Adkisson, 899 S.W.2d at 642 (quoting United States

v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).

In the instant case, the trial transcript does not reveal what the spectator said during her

outburst, and the defense did not put on the record what occurred. Therefore, because the record

does not clearly establish what occurred in the trial court, the appellant is not entitled to plain error

relief.

D. Victim’s Prior Arrest

Next, the appellant claims that the trial court erred by refusing to allow the appellant to

present evidence about the victim’s prior arrest for domestic violence. The State claims that the trial

court properly excluded the evidence. We agree with the State.

During Mary Kaleka’s brief testimony, the appellant requested that he be allowed to question

her about the victim’s having a prior arrest for domestic violence in Michigan. In a jury out hearing,

Kaleka testified that she and the victim had a great relationship but that they had “disagreements”

about his drinking. The defense asked Kaleka if the victim had been arrested in 1998 and charged

with domestic violence, and the following exchange occurred:

A. Yeah. It wasn’t domestic violence, he wasn’t arrested for

that.

Q. He was not charged with domestic violence?

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A. No, he was not.

Q. What was he charged with?

A. Actually, it was for him wanting to drive and he had

something to drink and I just wanted him to drive safely and

they considered it a domestic violence. He never hit me, ever.

Q. So if I had the charge from Michigan that said, domestic

violence, this would be wrong?

A. Yes, it would be wrong.

The witness stated that the charge was later dismissed. The defense argued that, in light of the

appellant’s self-defense claim, the victim’s prior arrest was relevant character evidence and

admissible to show that the victim had a history of violence and was the first aggressor. The trial

court ruled that the prior arrest was irrelevant, failed to show that the victim had a propensity for

violence, and had no probative value. The trial court allowed the defense to introduce into evidence

a copy of the arrest record for identification purposes. According to the arrest report, the victim was

arrested on December 24, 1998, for “DOMESTIC VIOLENCE - SECOND OFFENCE NOTICE.”

In the appellant’s brief, he states that the arrest did not appear to result in a conviction.

Generally, “[e]vidence of a person’s character or a trait of character is not admissible for the

purpose of proving action in conformity with the character or trait on a particular occasion.” Tenn.

R. Evid. 404(a); see also Tenn. R. Evid. 404(b). Nevertheless, if a defendant raises a claim of self-

defense, then Tennessee Rule of Evidence 404(a)(2) “permits the defendant to offer proof of the

victim’s ‘pertinent’ character for violent behavior to help establish that the victim was the

aggressor.” Neil P. Cohen, et al., Tennessee Law of Evidence, § 4.04[5][c] (5th ed. 2005).

However, pursuant to Tennessee Rule of Evidence 405(a), this substantive evidence may be

established only by reputation or opinion and specific acts may be inquired into only on cross-

examination. Id. Evidence of the victim’s character, when used solely to corroborate the

defendant’s claim that the victim was the first aggressor, may be admitted during the direct testimony

of a witness. See State v. Ruane, 912 S.W.2d 766, 779 (Tenn. Crim. App. 1995); State v. Hill, 885

S.W.2d 357, 361 n.1 (Tenn. Crim. App. 1994); State v. Furlough, 797 S.W.2d 631, 649 (Tenn. Crim.

App. 1990). Before proof of first aggression may be admitted, the following conditions must be

satisfied:

1. Self-defense must be raised by the proof and not by the

words and statements of counsel.

2. The trial judge must determine whether or not there is a

factual basis underlying the allegations of tendencies of first

aggression.

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3. The trial judge must determine whether or not the

probative value of the evidence is outweighed by the potential for

unfair prejudice.

See Ruane, 912 S.W.2d at 781 (citing State v. Laterral Jolly, No. 02C01-9207-CR-00169, 1993 WL

523590, at *4 (Tenn. Crim. App. at Jackson, Dec. 15, 1993)).

Turning to the instant case, the appellant wanted to question Mary Keleka during her direct

testimony about the victim’s prior arrest. However, substantive evidence of the victim’s violent

behavior to show that the victim was the aggressor is only admissible on cross-examination.

Moreover, the evidence was not admissible to corroborate the appellant’s claim of self-defense

because at the time of the jury out hearing, the self-defense claim had only been raised by counsel,

not by any of the witnesses. We note that after the appellant testified, the defense pointed out that

the issue of self-defense had been raised and asked to recall Mary Kaleka to testify about the victim’s

prior arrest. However, the trial court reiterated that Kelka’s testimony did not support the appellant’s

theory that the victim was a violent person and was irrelevant. Given Kaleka’s testimony that the

arrest did not involve violence and did not result in a conviction, we agree with the trial court and

conclude that it properly excluded the evidence. In any event, any error is harmless in light of the

overwhelming evidence of the appellant’s guilt. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P.

36(b).

E. Appellant’s Prior Arrests and Jailhouse Letters

The appellant claims that the trial court erred by allowing the State to impeach him with his

prior arrests. He contends that the trial court’s error was not harmless because the arrests were for

crimes of violence and, therefore, were unfairly prejudicial. The appellant also claims that the trial

court erred by allowing the State to impeach him with letters he wrote to Teresa Monger while he

was in jail for the current offense. Regarding the prior arrests, the State contends that the appellant

opened the door to impeachment by testifying that he had only a prior conviction for shoplifting.

Regarding the letters, the State claims that impeachment was proper because the appellant was trying

to suppress Teresa Monger’s testimony. We conclude that the trial court did not err by allowing the

State to impeach the appellant.

1. Prior Arrests

The appellant testified on direct examination that he had a prior conviction in Minnesota for

shoplifting. The appellant’s attorney asked him, “Have you been in trouble since then?” and the

appellant said no. Before cross-examination, the State requested that it be allowed to question the

appellant about a 1995 arrest for second degree assault, a 1997 arrest for aggravated robbery, and a

2000 arrest for second degree assault. The State argued that although none of the Minnesota arrests

had resulted in a conviction, the appellant had opened the door by stating that he had no other

problems with the law since his shoplifting conviction. The defense argued that the State had

provided no notice of the appellant’s prior arrests. The State claimed that the appellant lied during

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his testimony and that prior notice was not required for impeachment. The trial court ruled that the

State could ask the appellant about the prior arrests. On cross-examination, the appellant did not

deny the arrests but said that he did not remember them.

Tennessee Rule of Evidence 608(b) 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 . . . , be inquired into on

cross-examination.

Before a witness can be questioned, the trial court, upon request, must hold a hearing to determine

whether “the alleged conduct has probative value and that a reasonable factual basis exists for the

inquiry.” Tenn. R. Evid. 608(b)(1). Also, if the witness is the defendant, the trial court must

determine whether “the conduct’s probative value on credibility outweighs its unfair prejudicial

effect on the substantive issues.” Tenn. R. Evid. 608(b)(3). However, “[i]f the witness makes a

sweeping claim of good conduct on direct examination, that claim may open the door to cross-

examination without pretrial notice and with a lower standard of probativeness, as rebuttal of the

broad claim would itself tend to show untruthfulness.” Tenn. R. Evid. 608, Advisory Commission

Comments; see State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim. App. 1984); James Phillip

Hunter v. State, No. 01C01-9805-CR-00216, 1999 WL 695554, at * 8 (Tenn. Crim. App. at

Nashville, Sept. 9, 1999) (stating that the Petitioner opened the door to the State’s cross-examining

him at trial about other arrests when he testified that he had only one prior arrest); see also State v.

Miller, 674 S.W.2d 279, 284 (Tenn. 1984) (stating that, generally, arrest records are inadmissible

“unless the accused makes them admissible for impeachment in some manner, such as his testifying

that he had never been arrested”).

The appellant’s attorney asked if he had been in any trouble since his shoplifting conviction,

and the appellant said no despite his having prior arrests for second degree assault and aggravated

assault. We agree with the State that once the appellant denied having any further trouble with the

law, he opened the door to the State’s cross-examining him about the arrests. Therefore, pretrial

notice was not required. We note that in the appellant’s brief, he argues that the State failed to turn

over his prior criminal record as required by Rule 16, Tennessee Rules of Criminal Procedure.

However, the appellant made no argument or cited any authority regarding this issue, and it is

waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation

to authorities, or appropriate references to the record will be treated as waived in this court.”); Tenn.

R. App. P. 27(a)(7) (mandating that the appellant’s brief shall contain an argument regarding the

issues and why the issues warrant relief).

2. Jailhouse Letters

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Before cross-examination, the State asked that it be allowed to question the appellant about

jailhouse letters he wrote to Teresa Monger, and the trial court granted the State’s request. During

cross-examination, the appellant acknowledged that in letters to Monger, he asked her to “just say

no to the questions that you think will hurt me in the courtroom” and “say that you did not see me

[shoot] that man.” The appellant argues that the letters were irrelevant because “the evidence is not

sufficiently clear that the defendant was asking the witness to be untruthful” and, therefore, were not

an attempt to suppress Monger’s testimony. The appellant also claims that the letters were

inadmissible because the State failed to turn them over to the defense as required by Rule 16,

Tennessee Rules of Criminal Procedure.

Initially, the appellant has waived this issue because he failed to include it in his motion for

new trial. See Tenn. R. App. P. 3(e). In any event, relevant evidence “means 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; see also

Tenn. R. Evid. 403. “‘Any attempt by an accused to conceal or destroy evidence, including an

attempt to suppress the testimony of a witness, is relevant as a circumstance from which guilt of the

accused may be inferred.’” State v. Maddox, 957 S.W.2d 547, 552 (Tenn. Crim. App. 1997)

(citations omitted). We agree with the State that the appellant’s letters reflect an attempt to suppress

Monger’s testimony.

Regarding the State’s failure to turn over the letters pursuant to Rule 16(a)(1)(A), Tennessee

Rules of Criminal Procedure, the appellant’s attorney told the trial court that “we don’t know what

those letters have said. I believe that the state may have just received a copy of those.” The trial

court ordered the State to make copies of the letters and give them to the defense. The trial court

also gave the defense “a moment” to look at the letters. Given that the State had just received the

letters, it did not violate Rule 16. See Tenn. R. Evid. 16(a)(1)(A) (providing that, upon request, the

State must allow the defendant to inspect and copy any relevant written statements made by the

defendant “within the possession, custody or control of the state”).

F. Appellant’s Conversation With Sergeant Bass

The appellant claims that the trial court erred by allowing the State to cross-examine him

about his telling Sergeant Bass that he shot the victim out of jealousy. He contends that his oral

confession “had been suppressed previously by consent” and that he did not open the door to

impeachment under the doctrine of curative admissibility. The State claims that the appellant opened

the door to his conversation with Sergeant Bass. Although we agree with the appellant that he did

not open the door to impeachment, we conclude that he is not entitled to relief.

On direct examination, the appellant testified that he talked with a police officer at the

Southaven police station. The appellant stated, “It was a black officer, I don’t know his name,

though.” The appellant acknowledged that the officer had testified earlier during the trial. On cross-

examination, the following exchange occurred:

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Q. I’m going to ask you a few questions, not very many. When

you talked to Sergeant Bass, when he talked to you, do you

remember that, down in Mississippi?

A. I remember talking to someone.

Q. You gave him a statement; didn’t you?

A. He asked me, what’s my name and --

Q. And then you told him something about what happened out

there; didn’t you?

A. No.

The State then asked that the parties approach the bench, told the trial court that it believed the

defense had “open[ed] the door,” and stated that it was “entitled now to ask him about what he said

and then impeach him about what he said.”

The trial court excused the jury, and the State questioned the appellant as follows:

Q. You said you didn’t give a statement to Sergeant Bass?

A. Yes, sir.

Q. Isn’t it true that you told Sergeant Bass that you shot and

killed Mr. Kaleka and that you were overcome with jealousy

and then you broke down and cried?

A. No, sir. I was crying. I didn’t never -- when he asked me

what’s my name --

Q. He never actually asked you what you did, you just told him

that on your own; right?

A. Not that I recall, sir.

Q. Is it possible you did it?

A. Not to my knowledge, sir.

The defense argued that it had not opened the door by simply asking the appellant if he had spoken

with an officer. The trial court overruled the objection. When the State resumed cross-examining

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the appellant in front of the jury, the State asked him if he told Sergeant Bass that he shot the victim

because he was overcome with jealousy. The appellant stated, “No, sir, I don’t recall that.” After

the appellant’s testimony, the defense rested its case, and the State immediately called Sergeant Bass

to testify on rebuttal about the appellant’s confession.

As we will discuss in greater detail in the section below, the parties revealed during closing

arguments that they had agreed prior to trial that they would not question the witnesses about the

appellant’s confession to Sergeant Bass.3 Despite this agreement, the State asked the appellant on

cross-examination if he told Sergeant Bass “about what happened out there.” When the appellant

said no, the State argued that this denial opened the door to its being allowed to question the

appellant about his confession. We are puzzled as to how the State could claim that the appellant

opened the door to the confession when it was the State who asked the appellant, in blatant violation

of its agreement with the defense, if he had talked with Sergeant Bass about the shooting.

The State contends in its brief that the appellant opened the door to cross-examination “by

testifying that he had a conversation with Sgt. Bass.” However, we also agree with the appellant that

he did not open the door to his confession under the doctrine of curative admissibility. In State v.

Land, 34 S.W.3d 516, 531 (Tenn. Crim. App. 2000), this court expressly acknowledged our prior

implicit adoption of the “doctrine of curative admissibility,” stating that “‘[w]here a defendant has

injected an issue into the case, the State may be allowed to admit otherwise [inadmissible] evidence

in order to explain or counteract a negative inference raised by the issue defendant injects.’” Id. at

531 (citations omitted). In the instant case, Sergeant Bass had already testified during his direct

testimony that he traveled to Mississippi and spoke with the appellant. Therefore, the appellant’s

simply stating that he spoke with an officer at the Southaven police station did not inject an issue

into the case and did not result in an inference that prejudiced the State.

However, the question raised by the appellant is whether the trial court abused its discretion

by allowing the State to cross-examine the appellant about his confession to Sergeant Bass. See

State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999) (stating that the admissibility of

testimony is within the discretion of the trial court and will not be reversed absent an abuse of that

discretion). In order for the appellant to have opened the door to his confession, the door had to be

closed in the first place. The parties did not mention the agreement to the trial court until closing

arguments, and the record is devoid of any evidence that the trial court was aware of the agreement

prior to closing arguments. We are bewildered as to why neither party, particularly the defense,

informed the trial court that the parties had agreed not to question the witnesses about the appellant’s

statement to Sergeant Bass when this issue arose. See Tenn. R. App. P. 36(a); State v. Skelton, 77

S.W.3d 791, 799 (Tenn. Crim. App. 2001) (prohibiting a party from “standing silent while the trial

court commits an error in procedure, and then rely on that error to his or her own advantage at a later

time”). In any event, without any information about the agreement, the trial court had no reason to

believe that the door to the appellant’s confession had been closed. Therefore, based upon the

3

W hen entering such agreements, the parties should advise the trial court of the agreement and put the

agreement on the record early in the proceedings.

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information that the trial court had before it at the time of its ruling, we cannot say that the trial court

abused its discretion by allowing the State to cross-examine the appellant about his confession to the

officer.

G. State’s Closing Argument

The appellant claims that the trial court erred by allowing the State to inform the jury during

its rebuttal closing argument that the State and the appellant had entered into an agreement not to

question Sergeant Bass about the appellant’s confession. The State claims that the trial court

properly allowed it to explain why Sergeant Bass did not testify about the appellant’s confession

during its case-in-chief. We agree with the State.

During the appellant’s closing argument, the defense stated the following:

All you’ve got to do is watch the news. You know how many

homicides are going on in Shelby County. So how is it that Sergeant

Bass is able to remember, verbatim, that Terrance McCray was crying

uncontrollably and what he said, word for word.

So is Sergeant Bass a credible witness. He didn’t say that the

first time he testified. The first time he testified he’s there to gather

information. And there’s a supplement to that --

The State asked to approach the bench and explained to the trial court that the reason it had not

questioned Sergeant Bass about the appellant’s confession during the State’s case-in-chief was

because the parties had agreed prior to trial that they would not question the witnesses about it. This

was the first time that either party mentioned the agreement to the trial court. The State argued that

it should be allowed to tell the jury about the agreement because the defense was implying that

Sergeant Bass had lied about the appellant’s confession. The trial court agreed with the State.

During its rebuttal closing argument, the State told the jury the following:

But, this defendant, guilty mind, or whatever, volunteered that

information [to Sergeant Bass]. But, in an abundance of caution and

because [Sergeant Bass] couldn’t find that [written] statement that he

made in that report he made, we agreed with the defense that we

would not bring that up. We would not bring that up in our case in

chief. The defense, the defendant decided to bring it up again. And

decided to bring it up in a manner that we suggested to you that he

had an opportunity to tell about it and said nothing.

Ladies and gentlemen, that’s just not fair play. And therefore,

we could get back into that and that’s why we did. We believe that

what he said to that police officer was something that we could have

proven, but because the [written] statement wasn’t there, we decided

and we elected to try to be as fair as we can to this defendant, and we

-17-

would not bring that up. We agreed with that with the defense and

yet he wants to bring it up, again, in the context of, “Well, I didn’t say

anything bad”.

Initially, we note that the appellant failed to raise this issue in his motion for new trial. See

Tenn. R. App. P. 3(e). Nevertheless, he contends that the trial court’s ruling constitutes plain error.

See Tenn. R. Crim. P. 52(b). However, we agree with the State that the prosecutor’s statements were

made in response to the appellant’s closing argument in which he challenged Sergeant Bass’

testimony and implied that Sergeant Bass lied about the appellant’s confession. Therefore, the trial

court properly ruled that the State could tell the jury about its agreement with the defense.

H. Duty to Retreat

Finally, the appellant claims that the State committed plain error by implying during closing

argument that the appellant had a duty to retreat before he could claim self-defense. The State claims

that it did not misstate the law and that any error was harmless because the trial court properly

instructed the jury on self-defense. We conclude that the State erred but that the error was harmless.

During its closing rebuttal argument, the State said the following:

Self defense does not equal a preempt to strike. Think about

that. You can be afraid as you want to of a person, if you’re not in

imminent, immediate fear, or rather, fear of immediate, imminent

bodily harm, or death, that means it’s going to happen in the next

second, that you don’t have time to do something like, get away. You

don’t have time to do what the ordinary would do, try to talk the

person out of it. It’s so immediate you can’t do anything, but just

whatever you have to do, to kill the person, who’s your assailant.

That’s self-defense.

The State argues that the prosecution was not suggesting that the appellant had a duty to retreat but

was trying to explain to the jury that the appellant did not have a fear of imminent bodily harm at the

time of the shooting.

The appellant failed to raise this issue in his motion for new trial. See Tenn. R. App. P. 3(e).

In any event, in a self-defense claim, there is no duty to retreat before a person threatens or uses

force. See Tenn. Code Ann. § 39-11-611(a). We agree with the appellant that the prosecutor’s

saying “you don’t have time to do something like, get away” was a misstatement of the law regarding

self-defense. However, the trial court gave the jury a self-defense instruction and told the jury that

a person has no duty to retreat before using force. Generally, we presume that a jury has followed

the instructions of the trial court. See Butler, 880 S.W.2d at 399. Therefore, we discern no plain

error. See Tenn. R. Crim. P. 52(b).

-18-

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

___________________________________

NORMA McGEE OGLE, JUDGE

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