ROBERT L. HOLLOWAY, Jr., J.
The Defendant, Adam Wayne Robinson, was convicted by a jury of three counts of aggravated sexual battery. The Defendant raises three issues on appeal: prosecutorial misconduct during closing argument, sufficiency of the evidence to sustain the convictions, and cumulative error. During closing argument, the prosecutor improperly commented upon the Defendant's right not to testify and engaged in a persistent pattern of other improper prosecutorial argument. Following a thorough review, we conclude that the prosecutor's comments on the Defendant's right not to testify constitute reversible non-structural constitutional error. Moreover, the record establishes that the prosecutor engaged in a persistent pattern of other improper prosecutorial argument, the cumulative effect of which constitutes plain error. We, therefore, reverse the judgments of the trial court and remand the case for a new trial.
The Defendant was convicted of three counts of aggravated sexual battery
The State called two witnesses during the trial, B.C.
In regards to the first incident, B.C. testified that she was riding her bicycle at the tennis courts, which she said she did "all the time," and saw Adam picking up trash. She asked him if he wanted to be her friend, and he said "yes." He instructed her to follow him. She could not remember where they went or when the incident happened. She said, "[The Defendant] told me to pull my pants down and he picked me up and touched me in spots he wasn't supposed to." She said she calls those spots "my private part and my butt." When B.C. was asked about the location of the initial incident, B.C. said it happened at the apartments. In the following exchange, the State pressed B.C. for a more precise location:
B.C. said Adam told her not to tell anyone and gave her a dollar, but she lost it. She said his hands felt cold. Using a stuffed bunny, she described how the Defendant picked her up and put her face on his shoulder. When asked how her legs were positioned, she said, "I think they were dangling down or wrapped around his body." She said she did not remember how his hands got to the skin of her private part or butt.
B.C. was almost seven years of age on February 5, 2012, when the second and third incidents were alleged to have occurred. B.C.'s mother was going to walk their dog, and B.C. was supposed to ride her bicycle on the tennis courts in front of their apartment. She exited their apartment through the rear sliding door. B.C. rode around the side of the apartment building heading to the tennis courts while her mother stayed in the back yard. B.C. rode her bike to where Adam was picking up trash instead of going to the tennis courts. She said Adam told her to follow him, and she followed him on her bike behind an apartment building near a wooded area. She said they were behind an apartment near the patio and sliding glass door. She testified she pulled her pants down to her feet. Again using the stuffed bunny, she showed how Adam picked her up and touched her private parts and butt. She said Adam told her not to tell anyone and gave her a dollar, then she heard her mother yelling so she pulled her pants back up. She said she lost that dollar too.
B.C. rode her bike to the base of the hill, got off, and Adam pushed the bike up the hill for her. B.C.'s mother was on the patio behind their apartment, and according to B.C., when B.C.'s mother saw her, she said, "Does [the Defendant] do anything that he's not supposed to?" B.C. testified that she then told her mother "the story." She said the only other person she told was someone named Gayla, but that Gayla had moved to Texas. When asked about going to the doctor, B.C. said, "No, I didn't even have to go to the doctor." When asked twice if she talked to someone about what happened and drew pictures for that person, she answered "no" both times. B.C. said she watched a video before testifying. She identified two line drawings of a girl with no clothes on, one from the front and the other from the back. When asked if she saw her private parts on the line drawings, she drew a circle and wrote "private part" on the front view and drew a circle and wrote "butt" on the rear view. When asked what Adam did to the two areas circled, she said, "He just rubbed." She said his hands felt cold, but she could not remember if it was cold that day or what she was wearing.
B.C. was shown several pictures of Beechwood Apartments. The first picture showed a portion of the tennis courts in the foreground and, in the background, the apartment building where her mom lived, a trash dumpster, and the apartment building behind which she said the second and third incidents occurred. After looking at the photograph, she was asked again about where the first incident occurred. No verbal answer was given, but the transcript states, "(Drawing on diagram)." It is clear from the record that B.C. was looking at the photograph with the tennis courts in the foreground immediately before this line of questioning. The following examination then took place:
On the right center of the photograph, although it is very faint, appears to be a circle around a grassy area just outside the tennis court fence.
B.C. was then asked:
B.C. then explained the "same spot" was the place where she first saw Adam and then they went behind the apartment building. She said that, from where the second incident happened, she could see the basketball court and the dumpster but not the tennis courts.
On cross-examination, B.C. said she asked her mom if she could ride her bike and her mom told her she could if she would stay at the tennis courts. The following exchange concerned what happened between B.C. and her mother after the alleged second incident:
B.C. testified she watched a video
Later B.C. agreed that Adam was a stranger when she rode her bike to where he was picking up trash before the first incident was alleged to have happened.
B.C. stated that both times she pulled her pants down. She said Adam picked her up with both hands and put her face on his shoulder. He held her in that position with one hand and touched her with the other. She stated that, when he put her down, she pulled up her underwear and pants. After the first incident, she said she got back on her bike and rode around while Adam went back to picking up trash. B.C. said that her pants were pulled down one time each during the two incidents and that Adam did not tell her to pull her pants back down after she pulled them up. B.C. said she does not remember going to the place where the video was made. She was then asked about what she told the interviewer:
B.C. testified that the only person to ever give her a dollar was Adam and that he gave her a dollar two times. She said Adam never gave both her brother and her a dollar. She then volunteered about an incident when her mom's friend was getting a new car, and someone at the dealership gave her brother and her a dollar to get something out of the snack machine. She denied talking to her mother about dollars. She said she never gave her mother one of the dollars Adam gave her. She said she lost those dollars.
B.C.'s mother testified first in a jury-out offer of proof by the Defendant concerning an incident that occurred in 2007 when she took B.C. to Our Kids Center and about B.C.'s mother's mental health. She denied the reason she took B.C. to Our Kids Center was because of concerns that B.C. had been sexually abused by her brother-in-law. B.C.'s mother admitted that she was bipolar and had a history of manic depression. The trial court affirmed its previous ruling prohibiting questions about these two issues. However, the State asked to be allowed to inquire about her bipolar condition since it had been mentioned in opening statement by defense counsel. The court agreed.
According to B.C.'s mother, February 5 was a dreary and cold Sunday morning. B.C. wanted to ride her bike, and B.C.'s mother was planning to walk their dog. She and B.C. exited the sliding glass door at the rear of the apartment together. B.C. was going to ride on the tennis courts. B.C.'s mother said "that's where all the kids congregated and played." After walking the dog in the back yard, B.C.'s mother walked around to the front of her apartment building to check on B.C. She did not see B.C. at the tennis courts. After taking the dog back inside, she continued looking for B.C. in front of her apartment. After calling her name several times, B.C. came from behind the adjacent building pushing her bike. She was accompanied by the Defendant, whom she identified in court. B.C.'s mother was angry and yelled at B.C. for not being at the tennis courts. The Defendant told B.C.'s mother that B.C. had followed him around to the back of the building where he was cleaning up. B.C.'s mother said she "dismissed [the Defendant] and told him that I wasn't speaking to him[.]" She continued yelling at B.C. and told her to go back around the building and go into their apartment through the sliding door. According to B.C.'s mother, she walked to the rear of the apartment and apologized to B.C. for yelling at her and told her she was afraid because she did not know where she was. She asked B.C., "Has [the Defendant] ever done . . . anything inappropriate?" According to B.C.'s mother, B.C. said, "He touched my bottom and my private." B.C.'s mother noticed B.C. had her hands pulled up into her heavy coat and told her to pull them out. B.C.'s mother said B.C. was holding a crumpled up dollar bill in her left hand. The two went into the apartment, and B.C.'s mother called the police. She said she let B.C. keep the dollar.
B.C.'s mother said she spoke to the Defendant again on February 5 after calling the police. She was taking out the trash when the Defendant walked up from the parking lot and said, "I didn't mean to get [B.C.] in trouble. I, actually, thought y'all lived in that building, so I didn't realize she was so far away. I didn't know she was supposed to be on the tennis courts." B.C.'s mother said, "Well, she knew where she was supposed to be." B.C.'s mother did not tell the Defendant she had called the police.
B.C.'s mother said the only conversation she ever had with the Defendant before February 5 was at Quiznos, where she worked. The Defendant was placing an order and she recognized him. She told him, "My son is jealous, because you gave my daughter a dollar and he didn't get one." She said he looked confused so she repeated what she said, and he responded, "Oh, you're [B.C.'s] mom?" B.C.'s mother said B.C. had said that "her friend" gave her the dollar and that she had pointed out the Defendant. B.C.'s mother said that on one occasion after the Quiznos incident, B.C. and her brother both came in with a dollar.
On cross-examination, B.C.'s mother stated she was angry that B. C. was not where she was supposed to be and she yelled at B.C. She said B.C. was dressed appropriately for the weather, including a winter coat, blue jeans, and warm shoes. She said when B.C. came up from behind the building her clothes were not "disarranged" and her pants were buttoned and zipped. She said because of the tone of her voice, B.C. would have probably been frightened and scared "for that moment." B.C.'s mother agreed there were other people in the complex that walk their dogs during the day. She said she usually ran in to the same three or four people walking their dogs, usually in the rear of the apartment buildings.
Metropolitan Nashville Police Department ("MNPD") Officer John Jackson came to B.C.'s mother's apartment within an hour following the report of the February 5 incident. When B.C.'s mother was asked about what she told Officer Jackson, the following exchange took place:
B.C.'s mother was also asked about her telephone conversation with Metro Nashville Police Department ("MNPD") Detective John Farrell, in the following exchange:
The following concerns the conversation with Detective Farrell, as well as the conversation with Officer Jackson:
B.C.'s mother took B.C. to the Nashville Children's Alliance on February 10, 2012, for a forensic interview and to Our Kids Center for a medical examination several days after the incident. She told the counselor at Our Kids Center that she had a "gut feeling" about the Defendant when her daughter came out from behind the building.
The Defendant called MNPD Detective John Farrell as a witness. Detective Farrell contacted B.C.'s mother by phone on February 6. He testified she told him that she saw B.C. and the Defendant come from behind a building and that B.C. told her the Defendant "pulled her pants down and looked at her bottom." He said there was no mention of touching. Detective Farrell attended a forensic interview on February 10 at Nashville Children's Alliance. He stated B.C. first described an incident at the tennis courts in which the Defendant touched her bottom and penetrated her vagina with his finger. B.C. described a second incident in which she was riding her bike and the Defendant followed her behind a building and pulled her pants down. B.C. pulled her pants up, and the Defendant pulled them down again and penetrated her vagina with his finger. B.C. said that, after the second incident, she asked for a dollar and the Defendant gave her one and told her this was "our little secret." Detective Farrell stated he was not aware of any medical evidence of sexual abuse. He also stated that he asked B.C.'s mother to wear a body wire and speak with the Defendant. B.C.'s mother initially agreed but changed her mind because "she wasn't going to be able to do it because she couldn't miss work."
The defense next entered the 45-minute recording of the February 10 forensic interview as an exhibit and played the recording for the jury. The jury was provided a transcript of the recording and properly instructed that the recording itself and not the transcript was evidence.
Juanita Freudenthal, the Defendant's grandmother, testified that the Defendant moved to Beechwood Terrace Apartments with his disabled mother and became the groundskeeper about seven years ago. She stated she visited Beechwood Terrace Apartments at various times at least twice a day to help the Defendant's mother. She would drive around until she found the Defendant. She said the Defendant usually worked a couple of hours on Sunday mornings and that she and her husband would pick up the Defendant every Sunday to go to lunch at Cici's Pizza. She said the Defendant's mother wrecked his car and that he did not have transportation for about six months before the February incident. She testified that February 5, 2010, was Super Bowl Sunday and they planned to pick up the Defendant a little early to go to Cici's Pizza so they could be home for the pre-game activities. She testified her grandson was a fine young man and she had never known her grandson to do anything inappropriate to a child.
Over the objection of the State, the trial court allowed Mrs. Freudenthal to testify about a conversation she had with the Defendant concerning the incident. The trial court found the State had opened the door by asking Mrs. Freudenthal about the conversation during cross-examination and under the rule of completeness allowed Mrs. Freudenthal to tell the jury about the conversation. Mrs. Freudenthal had asked the Defendant why he was not wearing his uniform. The Defendant initially told her his uniform was at the cleaners. Two or three days later, Mrs. Freudenthal asked the Defendant why he was not working, and he told her "someone came to the [Beechwood Terrace Apartments] office and said that I touched a little girl. . . ." She asked him how, and he said they said "I had patted her on the butt." He told her he "didn't do that."
John Williams, a sixteen-year resident of Beechwood Terrace Apartments, testified that he had known the Defendant since 2006. Mr. Williams retired after 39 years as an air traffic controller and was the Air Traffic Facilities Manager at the time of his retirement. His wife is disabled and confined to a wheelchair, and he had two back surgeries and a stroke and sometimes needed help to carry out the trash or walk his two dogs. He said the Defendant, over the years, had helped him with such tasks when he was not able to do them. The Defendant had a key to his apartment and would take care of his dogs when he was out of town. He said he considered the Defendant a friend and trusted him completely and that, even though there were valuables in his apartment, he had no hesitation about providing the Defendant with a key when he was out of town. He said he could not remember ever seeing the Defendant with a child and that the Defendant had never said anything inappropriate about children.
Mr. Williams said that when his health is good, he walks his dogs four or five times a day around the eastern and northern periphery of the apartments, which he described as the grassy area behind F and G buildings that was designated as the "dog walk area."
On cross-examination, Mr. Williams said he lived in B building and did not know B.C. or her mother, or where they lived. He said that, on the morning of February 5, his wife was in the hospital. He had previously made arrangements to have new carpet and flooring installed and to have his apartment painted. Mr. Williams returned home around eight in the morning after visiting his wife. His brother was there to help move furniture. As previously agreed, the Defendant arrived around 9:00 a.m. and worked until noon. Mr. Williams said he was certain of the date because he transferred his wife to a skilled nursing facility for rehabilitation the next day, which was the Monday after the Super Bowl, and because the painters came around noon Sunday and had wanted to be through in time to watch the game.
Mr. Williams said he learned about the accusations approximately three weeks after the alleged incident. He saw the Defendant's grandmother talking to the apartments' maintenance man and stopped to see what was going on. Mr. Williams told the Defendant's grandmother to tell the Defendant to let him know if he could help. The Defendant later contacted him. Mr. Williams told the Defendant to look him in the eye, and then he asked the Defendant if the allegations were true. The Defendant said "no." Mr. Williams said that "was adequate and sufficient for me."
Heather Williams was the property manager at Beechwood Terrace Apartments from 1988 through 2009 and again from October 2011 through February 2012. She said there were 300 units and approximately 900 residents at Beechwood Terrace Apartments. Including herself, there were six employees. She said the Defendant took care of all ground maintenance, including the pool and the breezeways. She said he worked Monday through Friday and two hours on Sunday. Ms. Williams said residents had to fill out a form to have a dog or cat and pay pet fees. She estimated that there were forty to fifty pet owners and that at least one-half of the owners had dogs.
Ms. Williams said she was first contacted about the incident while she was on vacation in New Orleans. When she returned, she met with B.C.'s mother, who was one of the few residents she did not know or recognize. B.C.'s mother asked if she knew about the incident, and Ms. Williams said she did. B.C.'s mother wanted to know if the Defendant had been fired and if he would be evicted. Ms. Williams referred her to the property management company. Ms. Williams said the conversation with B.C.'s mother "immediately just kind of went, oh, okay, well, I understand completely, no problem, how are things, how was your trip, I heard you went on vacation." She said B.C.'s mother seemed "bubbly and unconcerned." Ms. Williams said she worked with the Defendant everyday, Monday through Friday. She never saw the Defendant harm a child or behave or speak inappropriately with a child. She said he was an excellent employee, friendly and lighthearted. She said that, when she agreed to again manage the apartments for new owners, part of the agreement she had with the owners was that the maintenance staff would be retained. She stated that the decision to terminate the Defendant's employment came down from the corporate management company.
Ms. Williams said Mrs. Freudenthal was a regular visitor at the complex and would often bring breakfast or lunch to the Defendant. She said the Defendant was usually waiting at the office door for his paycheck.
On cross-examination, Ms. Williams stated that the Defendant set his own schedule on Sundays but that he usually worked in the morning. She stated, "[The Defendant] had worked there long enough we let him, you know, choose his hours" and "he was trustworthy to do so." When asked if, at the time she returned to manage the apartments, she "more or less vouched for [the Defendant] as a good employee and trustworthy person[,]" Ms. Williams stated, "Absolutely." She was then asked if she "had any problem with doing that," and she said, "None whatsoever." She said she personally liked the Defendant and had valued him as an employee.
Detective Farrell was recalled by the Defendant and questioned about a recorded statement he had taken from the Defendant on February 12, 2012. The fifty-six-minute recorded statement was then played for the jury. Near the beginning of the recorded statement, Detective Farrell tells the Defendant that there have been a number of complaints by parents about the Defendant. When questioned at trial, Detective Farrell stated that was not true; there was only a single allegation. Detective Farrell stated one technique used in interrogating a subject is to try to convince them that the proof is overwhelming. Detective Farrell told the Defendant that, when a six or seven year old makes an allegation and is interviewed by experts, he can tell one hundred percent of the time if a child is making it up and B.C. was not making it up. Detective Farrell repeatedly stated he was very experienced in investigating these type cases and that he believed something happened to B.C. and that the Defendant was lying to him. Detective Farrell stated that, even with the techniques he used, the Defendant vehemently denied any inappropriate acts with children and denied giving any kids money. He admitted that B.C. followed him on her bike to the area around the dumpster. He heard her mother yelling and walked B.C. to her mother. He said B.C.'s mother was very angry that B.C. was not where she was supposed to be and was screaming at her. Detective Farrell stated the Defendant never told him about going to Mr. Williams's apartment to help him move furniture.
Based upon this evidence, the jury convicted the Defendant of three counts of aggravated sexually battery. The trial court subsequently sentenced him to nine years and six month to the Tennessee Department of Correction as a Child Predator. This appeal followed.
On appeal, the Defendant cites numerous comments, divided into six categories, made during the State's closing argument that he claims were improper. Specifically, the Defendant claims that the prosecutor: (1) asked the jury "to send a message"; (2) vouched for the credibility of the State's witnesses; (3) berated defense counsel; (4) argued matters outside the record and speculated; (5) made erroneous statements of law as to the burden of proof; and (6) commented upon the Defendant's right to remain silent and not testify.
The State argues that the Defendant made a contemporaneous objection in only two
When an issue arises concerning improper prosecutorial argument, this court must first determine the type of error, if any, that was committed so that the correct legal standard for review can be applied and, if applicable, whether the error is harmless. As our supreme court has stated:
As stated above, the Defendant made a contemporaneous objection four times during the prosecutor's closing argument. One of these objections came after the prosecutor made the following statement, which the Defendant contends was an improper comment on his right to remain silent:
Immediately following this objection by the Defendant and a sidebar conference, the prosecutor continued in the same vein:
Both the United States Constitution and the Tennessee Constitution "guarantee criminal defendants the right to remain silent and the right not to testify at trial."
In
After reviewing the allegedly improper remarks made by the prosecutor in this case, we conclude that, regardless of the prosecutor's intent, the prosecutor's remarks are of such a character that the jury would necessarily have taken it to be a comment on the Defendant's failure to testify. The prosecutor asked the jury what the Defendant and B.C. were doing behind the apartment building and then stated, "If they weren't doing what [B.C.] said they were doing, what were they doing, because he hasn't offered any explanation for that through any of his witnesses." Following a bench conference, the prosecutor continued to argue that the Defendant did not offer any proof about "what he was doing with B.C." The State contends that these remarks were "commentary on the proof the [D]efendant chose to present at trial and not on the [D]efendant's choice not to testify." However, "a prosecutor's comments on the absence of any contradicting evidence may be viewed as an improper comment on a defendant's exercise of the right not to testify when the defendant is the only person who could offer the contradictory proof."
We must next consider whether the State has established that this non-structural constitutional error was harmless beyond a reasonable doubt.
Considering the record as a whole, we cannot conclude that the prosecutor's unconstitutional argument was harmless beyond a reasonable doubt. The prosecutor's argument directly and indirectly referenced the Defendant's failure to testify several times. Moreover, the trial court provided no curative instructions to the jury following the Defendant's objection to the prosecutor's improper remarks. Finally, the evidence of guilt in this case was certainly not overwhelming. At trial, B.C. could not identify the Defendant as the person who had sexually assaulted her. Additionally, what B.C.'s mother claimed B.C. initially told her and what B.C's mother reported to the police did not correspond with B.C.'s trial testimony. B.C.'s testimony about the details of the two incidents also differed somewhat from the statements in her forensic interview. The jury was aware of these discrepancies because the defense called the detective that investigated the case as a witness and played B.C.'s forensic interview for the jury. Under these circumstances, the State has failed to show that the prosecutor's unconstitutional argument was harmless beyond a reasonable doubt. We, therefore, reverse the Defendant's convictions and remand for a new trial.
In addition to the prosecutor's comments on the Defendant's right not to testify, the Defendant cites numerous other examples of prosecutorial misconduct in closing argument.
The Defendant claims that the State improperly asked the jury "to send a message" in the following arguments:
The Defendant contends that the prosecutor improperly vouched for the State's witnesses by making the following arguments:
The Defendant cites the following arguments as erroneous statements of law, in which the prosecutor asserted that the burden of proof was on the Defendant:
The Defendant asserts that the prosecutor improperly argued matters outside the record and speculated on evidence in the following comments:
The Defendant cites two prosecutorial arguments in which he claims the prosecutor berated defense counsel while extolling the position of the State:
As set out above, the Defendant raised contemporaneous objections to only three of the prosecutor's comments during the State's closing argument—once when the prosecutor vouched for the State's witnesses and twice when the prosecutor berated defense counsel. Concerning the failure to make a contemporaneous objection, our supreme court has stated:
This Court has, in its discretion, reviewed allegations of non-constitutional prosecutorial misconduct as "plain error" even in the absence of a contemporaneous objection.
In
Although defense counsel's failure to contemporaneously object to instances of improper argument by the State would typically constitute a waiver of the issue, we conclude, under a plain error analysis, that the Defendant has established reversible error based upon the persistent pattern of prosecutorial misconduct in the State's closing argument. We will examine each of the factors from Adkisson as they relate to the Defendant's claims.
The record in this case contains a transcript of the testimony, the exhibits, a transcript of the jury-out hearings, and a transcript of the arguments of counsel. For the purpose of our analysis, the record clearly shows what occurred at trial.
The trial court has wide discretion in controlling the course of arguments and will not be reversed absent an abuse of discretion.
"In determining whether statements made in closing argument constitute reversible error, it is necessary to determine whether the statements were improper and, if so, whether the impropriety affected the verdict."
The improper comments by the prosecution were not "isolated utterances," but rather, a "reoccurring theme throughout [the] entire argument."
As mentioned previously, there were four objections made by the defense counsel, three of which occurred during the State's closing argument. The objections made by the Defendant were not specifically sustained or overruled by the trial court. For example, [Counsel for Defense]'s first objection during the State's summation was met with a ruling of "Well, again, it's just argument." As part of the second objection, [Counsel for Defense] asked to approach. [Counsel for State] responded, "It's closing argument." The trial court said, "I know what it is. All right, [l]et's approach." In response to [Counsel for Defense]'s third objection, [Counsel for State] stated, "It was open season on my ethical conduct, Your Honor." The trial court stated, "I know." [Counsel for State] responded, "I'm responding to that." The trial court said, "All right. Move on." By not ruling on the objections, the trial court effectively overruled them. Following the objections, the trial court took no curative measures and provided no curative instructions to the jury.
Determining someone's intent is difficult. However, as mentioned above, it is clear from the record that the improper comments during closing summation were not "isolated utterances by the prosecutor."
Aside from the comments about the Defendant not testifying, no single prosecutorial statement the Defendant contends was improper, standing alone, would have unfairly and prejudicially undermined the fundamental fairness of the trial. However, by engaging in a persistent pattern of misconduct during closing argument, we believe that the cumulative effect of the prosecutor's statements deprived the Defendant of his right to a fair trial.
We recognize that cases involving sexual offenses against children are difficult to prosecute, defend, and judge. Such cases often place great strain on all concerned. The younger the alleged victim, often the more difficult the case is to prove. In this case, the child could not identify in court the Defendant as the person who sexually assaulted her. What B.C.'s mother claimed B.C. initially told her and what B.C's mother told the police, does not correspond with what B.C. testified happened. B.C.'s testimony about the details of the two incidents differs somewhat from the statements in her forensic interview. The Defendant adamantly denied any inappropriate contact with B.C. in his initial interview by the detective. The detective that investigated the case and interrogated the Defendant was called as a witness by the defense. The tape recording of the interrogation was played to the jury by the defense. The forensic interview of B.C. was played to the jury by the defense. B.C.'s mother's testimony about the dollars given to B.C., the dollar given to B.C. and her brother, and the incident at Quizno's provided strong circumstantial evidence if believed by the jury. B.C., however, said her brother was not given a dollar by the Defendant. We say all of this not to determine the sufficiency of evidence, but rather to show the relative weaknesses and strengths of the State's case.
The Due Process Clause of the 5th and 14th Amendments to the United States Constitution and Article I, section 9 of the Tennessee Constitution affords the Defendant the right to a fair trial free from improper comments by the prosecutor during closing argument.
It is clear from the record that the trial court gave considerable latitude to both sides during closing argument. The objections made by the State and the Defendant were typically greeted with a ruling of "it's just argument" or "move on." Although the Defendant may have decided that additional objections would be unproductive, it does not appear that there was any tactical reason for the Defendant's failing to make additional objections.
Finally, our consideration of these errors is necessary to do substantial justice. In this case, the improper comments by the prosecutor were not "isolated utterances"; rather, they were a reoccurring theme throughout the entire argument from the prosecutor.
All five
For the foregoing reasons, the judgments of the trial court are reversed, and the case is remanded for a new trial.
