State of Tennessee v. Joey Godwin ( 2014 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    January 7, 2014 Session
    STATE OF TENNESSEE v. JOEY GODWIN
    Appeal from the Circuit Court for Gibson County
    Nos. 9061 & 9088     Clayburn Peeples, Judge
    No. W2013-01602-CCA-R3-CD - Filed March 6, 2014
    Appellant, Joey Godwin, was convicted of two counts of the sale of more than 0.5 grams of
    cocaine, a Schedule II controlled substance, for which he received consecutive sentences of
    thirty years each. He appeals his convictions and sentences on the following grounds: (1) the
    evidence underlying the convictions was insufficient to establish his guilt beyond a
    reasonable doubt; (2) the trial court erred by imposing consecutive sentences; and (3) the trial
    court erred in finding that the State did not improperly exercise some of its peremptory
    challenges during jury selection. We affirm the judgments of the trial court.
    Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
    R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN, J., joined.
    D. K ELLY T HOMAS, J R., J., filed a separate, dissenting opinion.
    Tom W. Crider, District Public Defender; J. Daniel Rogers (on appeal), and Linda L. Moore
    (at trial), Assistant District Public Defenders, Trenton, Tennessee, for the appellant, Joey
    Godwin.
    Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
    Garry G. Brown, District Attorney General; and Larry Hardister and Jason C. Scott, Assistant
    District Attorneys General, for the appellee, State of Tennessee.
    OPINION
    I. Facts
    This case involves an undercover operation by the Humboldt Police Department’s
    Drug Task Force wherein appellant sold cocaine in an amount greater than 0.5 grams to a
    confidential source on two separate occasions. For his involvement in these offenses, a grand
    jury indicted appellant for two counts each of the sale of a Schedule II substance and delivery
    of the same. See 
    Tenn. Code Ann. §§ 39-17-408
    (b)(4), -417(a)(2), (a)(3), (c)(1).
    A. Trial
    The State’s first witness was Lieutenant Danny Lewis, who was an assistant special
    agent with the Drug Task Force of the Humboldt Police Department. In 2010, the task force
    conducted a seven-month-long operation targeting drug trafficking in public housing in the
    area. As part of this operation, the task force recruited a confidential informant (“CI”)1 who
    had experience in working undercover. Lieutenant Lewis stated that they placed the CI in
    public housing as a resident and allowed him time to make contacts in the area. After the CI
    made the necessary contacts, he began meeting with the task force to conduct controlled buys
    of illegal drugs. Protocol required that an officer first search the CI’s vehicle and person to
    ensure that he had no drugs or money in his possession. The CI would place a telephone call
    to arrange to purchase drugs. Officers would next equip him with a video camera worn on
    his body, as well as an audio transmitter in his vehicle. Lieutenant Lewis explained that
    when the CI conducted the drug purchases, officers were located nearby to intervene if
    problems arose. Following the completion of the transactions, officers would meet with the
    CI to retrieve the evidence and to search him and his vehicle again. Lieutenant Lewis
    acknowledged that the CI was a paid confidential source; however, he was paid for each
    transaction without regard to whether the task force could build a case against the subject or
    whether the State secured a conviction against the subject, thus removing any incentive to
    “set somebody up.”
    Lieutenant Lewis recalled that with regard to the first transaction involving appellant
    on September 30, 2010, the operation followed protocol. The CI placed a telephone call to
    appellant and arranged to purchase drugs from him at the Fort Hill public housing complex.
    Lieutenant Lewis identified appellant from the videotape, and the tape also captured
    appellant’s vehicle, which the task force was able to confirm by matching the license
    numbers with public records. Upon completion of the transaction, the CI returned with the
    evidence. Lieutenant Lewis field tested the substance, and it tested positive for cocaine. The
    Tennessee Bureau of Investigation’s (“TBI”) crime laboratory confirmed that the substance
    was, indeed, 0.86 grams of cocaine base. The CI subsequently identified appellant through
    the use of a photograph array.
    Lieutenant Lewis stated that the same procedure was followed on November 22, 2010,
    when the CI again purchased drugs from appellant. They agreed to meet at Westside Grocery
    to complete the transaction. Appellant arrived in a different car, and he did not roll down the
    1
    To maintain the confidentiality of this police source, we will refer to him as the “CI.”
    -2-
    car’s window fully, which created a glare on the video recording. Lieutenant Lewis
    explained that although the driver’s identity is not readily apparent, the voice on the
    recording was similar to appellant’s voice as recorded during the first transaction. Following
    the same procedure, the CI returned with the evidence, which was field tested and confirmed
    by the TBI as being 0.7 grams of cocaine base.
    On cross-examination, Lieutenant Lewis admitted that the CI was provided housing
    by the public housing authority at no expense to him and that utility bills were likely included
    in the “package.” He also expounded on the CI’s credibility, stating that although the CI had
    garnered some criminal convictions, they were far removed in time and were outweighed by
    the experience that he had received in working with other agencies such as the Bureau of
    Alcohol, Tobacco, and Firearms, the Drug Enforcement Agency (“DEA”), and other drug
    task forces in Tennessee and surrounding states. In short, Lieutenant Lewis stated, the CI
    came “highly recommended . . . as doing good work and being able to handle himself . . . .”
    He had experienced no difficulty or problems with the CI with regard to honesty or
    truthfulness.
    The CI testified next and stated that he had worked with the drug task force on a “by
    the buy” basis, meaning that he would be compensated $50 for any purchase of marijuana
    and $100 for any purchase of “narcotics, pills, [or] cocaine.” Payment was not predicated
    upon securing a conviction. The CI had been working with law enforcement agencies for
    eighteen to twenty years at the time of the transactions and had assisted the DEA, the Federal
    Bureau of Investigation, “[a]ll of Tennessee, every branch of the government, . . . local task
    forces[,] Atlanta, California, South Carolina, North Carolina, Virginia, Alabama[,] [and]
    Mexico, the border.”
    The CI noted that before the day he first purchased drugs from appellant, he had “a
    couple” of contacts with him, and during one of the contacts, the CI obtained appellant’s
    telephone number. The CI told appellant that he would need some “hard,” meaning the rock
    form of cocaine, and appellant furnished his telephone number and instructed the CI to call
    when he was ready. On the date of the first drug transaction, the CI met with Investigator
    Lewis, and task force officers “wired” the CI and his truck. They also searched him and his
    truck. They instructed the CI to place a telephone call to appellant, and the CI drove to the
    designated meeting place. Appellant exited the apartment, approached the CI, and delivered
    the cocaine to him. The CI stated that he then returned to Officer Lewis and turned over the
    evidence to him.
    The CI explained that the subsequent transaction in November 2010 followed the
    same protocol. After he placed the telephone call to appellant, the CI began to drive toward
    the meeting place, which was Westside Grocery. Appellant parked his vehicle, and the CI
    -3-
    exited his vehicle and walked to the driver’s side of appellant’s vehicle. Appellant never
    exited his vehicle. The CI confirmed that he purchased cocaine that day from appellant and
    delivered it to Lieutenant Lewis.
    On cross-examination, the CI admitted to felony convictions for stealing livestock and
    for passing a forged check. He acknowledged that during the six-month time frame in which
    he worked with the drug task force, he did not have any other source of employment and that
    he supported his girlfriend and his daughter. However, his girlfriend received social security
    benefits. The CI could not state with certainty the total amount of his compensation for his
    work with the task force. He agreed that he was provided a place to live and all necessary
    utilities. However, he explained that he paid for other items, such as cable television, grocery
    bills, cellular telephone service, clothing, and automotive expenses. The CI testified that he
    had used between fifty and one hundred aliases during his career and that his alias at that
    time was “Tennessee.”
    The CI further indicated that during the second transaction, appellant instructed him
    to meet at “the Crossing.” However, when the CI arrived there, appellant was not present.
    The CI contacted appellant and received directions to the location where they were to meet.
    The CI testified, “[H]e was moving around like roaches.” The CI also stated that he was
    working with other drug task forces during the same period.
    On redirect examination, the CI explained that his conviction for “cattle rustling” was
    twenty years old and his conviction for passing a forged check was sixteen to eighteen years
    old. At the close of the CI’s testimony, the State rested its case, and appellant presented no
    proof. Following deliberations, the jury found appellant guilty of two counts of the sale of
    more than 0.5 grams of cocaine.
    B. Sentencing Hearing
    At the sentencing hearing, the State advanced that appellant should be sentenced as
    a career offender, and appellant did not contest that position. The trial court imposed
    sentences of thirty years for each conviction, and the State requested that they be served
    consecutively based on appellant’s extensive criminal record and his being on parole at the
    time the offenses were committed. Appellant asserted that as a mitigating factor, the trial
    court should consider that the offenses neither caused nor threatened serious bodily injury
    and asked that the sentences be served concurrently.
    Based on appellant’s status as a parolee when the offenses were committed and upon
    his having “a great deal more than enough of a prior record to classify him as a career
    offender,” the trial court ordered that appellant serve his sentences consecutively to each
    -4-
    other and consecutively to the offense for which he was on parole. The trial court noted that
    appellant took no responsibility for his actions and that based on his criminal behavior, he
    constituted a “danger to the order and well[-]being of society.”
    II. Analysis
    Appellant raises three issues for our review: (1) whether the evidence was sufficient
    to support his convictions; (2) whether the trial court erred in ordering consecutive sentence
    alignment; and (3) whether the trial court erred in finding that the State did not improperly
    exercise some of its peremptory challenges during voir dire.
    A. Sufficiency of the Evidence
    The standard for appellate review of a claim challenging the sufficiency of the State’s
    evidence is “whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt.” Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979) (citing Johnson
    v. Louisiana, 
    406 U.S. 356
    , 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 
    354 S.W.3d 718
    , 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
    must demonstrate that no reasonable trier of fact could have found the essential elements of
    the offense beyond a reasonable doubt. See Jackson, 
    443 U.S. at 319
    . This standard of
    review is identical whether the conviction is predicated on direct or circumstantial evidence,
    or a combination of both. State v. Dorantes, 
    331 S.W.3d 370
    , 379 (Tenn. 2011); State v.
    Brown, 
    551 S.W.2d 329
    , 331 (Tenn. 1977).
    On appellate review, “‘we afford the prosecution the strongest legitimate view of the
    evidence as well as all reasonable and legitimate inferences which may be drawn
    therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 
    318 S.W.3d 850
    , 857 (Tenn.
    2010)); State v. Williams, 
    657 S.W.2d 405
    , 410 (Tenn. 1983); State v. Cabbage, 
    571 S.W.2d 832
    , 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
    the weight and value to be given the evidence, as well as all factual disputes raised by the
    evidence, are resolved by the jury as trier of fact. State v. Bland, 
    958 S.W.2d 651
    , 659 (Tenn.
    1997); State v. Pruett, 
    788 S.W.2d 559
    , 561 (Tenn. 1990). This court presumes that the jury
    has afforded the State all reasonable inferences from the evidence and resolved all conflicts
    in the testimony in favor of the State; as such, we will not substitute our own inferences
    drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
    evidence. Dorantes, 
    331 S.W.3d at 379
    ; Cabbage, 
    571 S.W.2d at 835
    ; see State v. Sheffield,
    
    676 S.W.2d 542
    , 547 (Tenn. 1984). Because a jury conviction removes the presumption of
    innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
    level, the burden of proof shifts from the State to the convicted appellant, who must
    -5-
    demonstrate to this court that the evidence is insufficient to support the jury’s findings.
    Davis, 354 S.W.3d at 729 (citing State v. Sisk, 
    343 S.W.3d 60
    , 65 (Tenn. 2011)).
    Appellant was convicted of two counts of the sale of a Schedule II controlled
    substance — 0.5 grams or more of cocaine — on two different dates. See 
    Tenn. Code Ann. §§ 39-17-407
    (b)(4), -417(a)(3), (c)(1). Thus, for each offense date, the State must have
    presented sufficient evidence to establish appellant’s guilt beyond a reasonable doubt.
    In an attempt to combat drug sales in public housing in the area, officers with the
    Humboldt Police Department’s drug task force worked in conjunction with a confidential
    source whom they placed in housing for the purpose of facilitating contact with drug dealers.
    In that capacity, the CI met appellant. The CI indicated his desire to purchase cocaine in the
    near future, and appellant provided the CI with his telephone number for that purpose. For
    the offense dated September 30, 2010, the State presented evidence that officers with the
    drug task force worked in conjunction with the CI to arrange for the CI to purchase an
    amount of cocaine from appellant. In the presence of officers, the CI contacted appellant
    through the given telephone number and arranged to meet him at an apartment in the Fort
    Hill public housing complex. When the CI arrived, appellant exited the apartment and sold
    cocaine to the CI. The State provided both audio and video recordings of the transaction, and
    the CI further identified appellant in a photograph array. By stipulation, the State introduced
    a laboratory report from the TBI confirming that the substance in question was, in fact, 0.86
    grams of cocaine base.
    On November 22, 2010, following the same procedure, the CI, in the presence of drug
    task force officers, telephoned appellant and arranged to purchase cocaine from him. This
    time, however, appellant relocated from the agreed-upon meeting place of “the Crossing” to
    a local grocery during the course of the transaction. The CI and appellant eventually met at
    the Westside Grocery. When appellant parked his vehicle, the CI approached the driver’s
    side, and appellant handed cocaine to him. Again, the State provided recorded evidence of
    the transaction, and the CI confirmed that he had, indeed, purchased cocaine from appellant
    a second time. The TBI laboratory report confirmed that the substance contained 0.7 grams
    of cocaine base.
    In both instances, the evidence, viewed in the light most favorable to the State,
    supports appellant’s convictions. The State established that appellant knowingly engaged
    in the sale: he provided the CI with his telephone number for that express purpose and met
    with the CI on two occasions, again for the same purpose. The State proved that the
    substance was a Schedule II controlled substance, to-wit: cocaine, that weighed more than
    0.5 grams on each occasion. Appellant is not entitled to relief on this issue.
    -6-
    B. Consecutive Sentencing
    Appellant contests the consecutive sentence alignment of his two thirty-year
    sentences. He does not contest the length of his sentences, nor does he contest consecutive
    sentence alignment with the sentence upon which he was paroled at the time he committed
    the instant offenses. See Tenn. R. Crim. P. 32(c)(3)(A) (mandating consecutive sentencing
    for a felony committed while on parole for a felony).
    Prior to 2013, on appellate review of sentence alignment issues, courts employed an
    abuse of discretion standard of review. See State v. Hastings, 
    25 S.W.3d 178
    , 181 (Tenn.
    Crim. App. 1999). Our supreme court has since extended the standard of review enunciated
    in State v. Bise, abuse of discretion with a presumption of reasonableness, to consecutive
    sentencing determinations. State v. Pollard, ___ S.W.3d ___, ___, No. M2011-00332-SC-
    R11-CD, 
    2013 WL 6732667
    , at *9 (Tenn. Dec. 20, 2013); Bise, 
    380 S.W.3d 682
    , 707 (Tenn.
    2012) (modifying standard of review of within-range sentences to abuse of discretion with
    a presumption of reasonableness); see also State v. Caudle, 
    388 S.W.3d 273
    , 278-79 (Tenn.
    2012) (applying abuse of discretion with a presumption of reasonableness to review of
    alternative sentencing determinations by the trial court). Thus, the presumption of
    reasonableness gives “deference to the trial court’s exercise of its discretionary authority to
    impose consecutive sentences if it has provided reasons on the record establishing at least
    one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b) . . . .”
    Pollard, 
    2013 WL 6732667
    , at *9.
    The procedure used by the trial courts in deciding sentence alignment is governed by
    Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant to a
    trial court’s sentencing decision. In addition to the considerations contained in section 40-
    35-115, imposition of consecutive sentences must be “justly deserved in relation to the
    seriousness of the offense.” 
    Tenn. Code Ann. § 40-35-102
    (1). Moreover, the length of the
    resulting consecutive sentence must be “no greater than that deserved for the offense
    committed.” 
    Id.
     § 40-35-103(2). The court may order consecutive sentences if it finds by
    a preponderance of the evidence that one or more of the following seven statutory criteria
    exists:
    (1)    The defendant is a professional criminal who has knowingly devoted
    the defendant’s life to criminal acts as a major source of livelihood;
    (2)    The defendant is an offender whose record of criminal activity is
    extensive;
    -7-
    (3)    The defendant is a dangerous mentally abnormal person so declared by
    a competent psychiatrist who concludes as a result of an investigation
    prior to sentencing that the defendant’s criminal conduct has been
    characterized by a pattern of repetitive or compulsive behavior with
    heedless indifference to consequences;
    (4)    The defendant is a dangerous offender whose behavior indicates little
    or no regard for human life and no hesitation about committing a crime
    in which the risk to human life is high;
    (5)    The defendant is convicted of two (2) or more statutory offenses
    involving sexual abuse of a minor with consideration of the aggravating
    circumstances arising from the relationship between the defendant and
    victim or victims, the time span of defendant’s undetected sexual
    activity, the nature and scope of the sexual acts and the extent of the
    residual, physical and mental damage to the victim or victims;
    (6)    The defendant is sentenced for an offense committed while on
    probation; or
    (7)    The defendant is sentenced for criminal contempt.
    The Pollard court reiterated that “[a]ny one of these grounds is a sufficient basis for
    the imposition of consecutive sentences.” Pollard, 
    2013 WL 6732667
    , at *9 (citing State v.
    Dickson, 
    413 S.W.3d 735
    , 748 (Tenn. 2013)). “So long as a trial court properly articulates
    reasons for ordering consecutive sentences, thereby providing a basis for meaningful
    appellate review, the sentences will be presumed reasonable and, absent an abuse of
    discretion, upheld on appeal.” 
    Id.
    Of the seven statutory factors, the trial court found subsection (2), that appellant “is
    an offender whose record of criminal activity is extensive,” applicable to this case. 
    Tenn. Code Ann. § 40-35-115
    (2). Our supreme court has stated that “[c]onsecutive sentencing
    based on an offender’s extensive record of criminal activity is appropriate to protect society
    from those who ‘resort to criminal activity in furtherance of their anti-societal lifestyle.’”
    Dickson, 413 S.W.3d at 749 (quoting Gray v. State, 
    538 S.W.2d 391
    , 393 (Tenn. 1976)). In
    this case, the trial court noted that appellant had garnered six class B felonies and one class
    C felony. Our review of the presentence report in this case reveals that all seven of these
    felonies were for the sale of cocaine and further shows that appellant’s string of convictions
    for the sale of cocaine began in 1993 and continued until the case sub judice. In addition,
    appellant had seven misdemeanor convictions and various traffic offense convictions. “Trial
    -8-
    courts can consider prior misdemeanors in determining whether a defendant has an extensive
    record of criminal activity” in part because “they indicate a consistent pattern of operating
    outside the confines of lawful behavior.” Dickson, 413 S.W.3d at 748. We note that an
    appellant’s record does not have to exceed the number of convictions required to determine
    his sentencing range to be considered “extensive” under the consecutive sentencing statute;
    nonetheless, in this case, appellant’s record did in fact exceed the combination of six class
    A, B, or C felonies necessary to place him in the range of a career offender upon commission
    of a class B felony. Id. § 40-35-108(a)(1); cf. 
    Tenn. Code Ann. § 40-35-114
    (1) (noting that
    to enhance a within-range sentence, the number of criminal convictions must exceed those
    necessary to establish the appropriate range).
    Furthermore, while appellant claims that the “sentence does not correlate with the true
    nature of the offense” because the record does not reflect that “[a]ppellant was a regular
    seller of drugs,” the record belies his contention. As previously stated, appellant had seven
    previous convictions for the sale of cocaine stretching over two decades, and the trial court
    noted that appellant was on parole for at least one of these prior offenses when he committed
    the instant offenses. These facts indicate that appellant was “a regular seller of drugs.” The
    record shows that the trial court articulated reasons for imposing consecutive sentences;
    therefore, under Pollard, we presume that its sentencing was reasonable. See Pollard, 
    2013 WL 6732667
    , at *9. Moreover, our review of the record indicates that the trial court did not
    abuse its discretion in sentencing appellant. Appellant is without relief as to this issue.
    C. Batson Challenge
    In his brief, appellant argues that the trial court erred in denying his Batson challenge,
    asserting that five of the seven peremptory challenges issued by the State were against
    African-American jurors and that the resulting jury was all Caucasian.
    In Batson v. Kentucky, 
    476 U.S. 79
    , 89 (1986), the United States Supreme Court held
    that “the Equal Protection Clause [of the United States Constitution] forbids the prosecutor
    to challenge potential jurors solely on account of their race.” Accordingly, the State’s use
    of peremptory challenges to intentionally exclude jurors on the basis of race violates a
    defendant’s right to equal protection. 
    Id.
    “‘The peremptory challenge is one of the oldest established rights of the criminal
    defendant.’” State v. Spratt, 
    31 S.W.3d 587
    , 597 (Tenn. Crim. App. 2000) (quoting United
    States v. Annigoni, 
    96 F.3d 1132
    , 1136 (9th Cir.1996)). Peremptory challenges are “‘an
    essential part of the trial,’” 
    id.
     (quoting Lewis v. United States, 
    146 U.S. 370
    , 376 (1892)),
    constituting “‘one of the most important of the rights secured to the accused,’” id. at 598
    (quoting Pointer v. United States, 
    151 U.S. 396
    , 408 (1894)). Because of the importance of
    -9-
    the right to make peremptory challenges, courts have traditionally afforded an “extraordinary
    remedy . . . to an accused who was deprived of the right: reversal of conviction, without a
    showing of prejudice.” 
    Id.
     (citing Lewis, 
    146 U.S. at 376
    ).
    As this court noted in Spratt:
    Peremptory challenges, along with challenges for “cause,” are the
    principal tools that enable litigants to remove unfavorable jurors during the
    jury selection process. The central function of the right of peremptory
    challenge is to enable a litigant to remove a certain number of potential jurors
    who are not challengeable for cause, but in whom the litigant perceives bias
    or hostility. The function of the [peremptory] challenge is not only to
    eliminate extremes of partiality on both sides, but to assure the parties that the
    jurors before whom they try the case will decide on the basis of the evidence
    placed before them, and not otherwise.
    Id. at 598 (internal citations and quotation marks omitted).
    At the outset, we note that the proper time to lodge a Batson challenge is prior to
    accepting the jury and prior to the jury’s being sworn. State v. Kiser, 
    284 S.W.3d 227
    , 256
    n.29 (Tenn. 2009) (citing State v. Peck, 
    719 S.W.2d 553
    , 555 (Tenn. Crim. App. 1986)). Our
    Supreme Court instructed that when ruling on a Batson challenge, trial courts should utilize
    “a three-pronged analysis for determining whether the suspect challenges were impermissibly
    based on the potential juror’s race.” Hugueley, 185 S.W.3d at 368. Under this three-pronged
    approach, “the defendant must establish a prima facie case of purposeful discrimination
    against a prospective juror.” Id. To do so, a defendant may rest “‘solely on evidence
    concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.’” Id.
    (quoting Batson, 
    476 U.S. at 96
    ).
    For the second prong of the analysis, if a defendant establishes “a prima facie showing
    of purposeful discrimination,” only then must the State provide a neutral basis for the
    challenge. 
    Id.
     (citing Batson, 
    476 U.S. at 97
    ). The State’s explanation “must be a clear and
    reasonably specific account of the prosecutor’s legitimate reasons for exercising the
    challenge.” 
    Id.
     (citing Batson, 
    476 U.S. at
    98 n.20). “[T]he race or gender neutral
    explanation need not be persuasive, or even plausible.” 
    Id.
     (citing Purkett v. Elem, 
    514 U.S. 765
    , 767-68 (1995)). “‘Unless a discriminatory intent is inherent in the prosecutor’s
    explanation, the reason offered will be deemed race neutral.’” 
    Id.
     (quoting Purkett, 
    514 U.S. at 768
    ); see also Hernandez v. New York, 
    500 U.S. 352
    , 360 (1991) (plurality opinion).
    -10-
    Finally, if the State provides a race-neutral reason for the challenge, “the trial court
    must then determine, from all of the circumstances, whether the defendant has established
    purposeful discrimination.” 
    Id.
     (citing Batson, 
    476 U.S. at 98
    ). Under this last prong, “the
    party raising the Batson objection bears the burden of persuading the trial court that the other
    party has engaged in purposeful and impermissible discrimination.” Kiser, 
    284 S.W.3d at
    258 (citing Batson, 
    476 U.S. at 93
    ); see Purkett, 
    514 U.S. at 768
     (noting that “the ultimate
    burden of persuasion regarding racial motivation rests with, and never shifts from, the
    opponent of the strike”). For the trial court, “‘the decisive question will be whether counsel’s
    race-neutral explanation for a peremptory challenge should be believed.’” Id. at 259 (quoting
    Hernandez, 
    500 U.S. at 365
    ).
    This court has previously noted that “‘determination of the prosecutor’s discriminatory
    intent or lack thereof turns largely on the evaluation of the prosecutor’s credibility, of which
    the attorney’s demeanor is often the best evidence.’” Id. at 255 (quoting State v. Smith, 
    893 S.W.2d 908
    , 914 (Tenn. 1994)). Accordingly, the trial court’s findings in this regard are
    attributed great weight and will not be set aside unless they are clearly erroneous. 
    Id.
     (citing
    Hugueley, 185 S.W.3d at 369). For this reason, when ruling on a Batson challenge, the trial
    court must give specific reasons for each of its factual findings, including: (1) whether the
    objecting party has established a prima facie showing of purposeful discrimination; (2)
    whether the responding party has shown a neutral basis for the challenge; and (3) whether
    the totality of the circumstances support a finding of purposeful discrimination. Hugueley,
    185 S.W.3d at 369 (citing Woodson v. Porter Brown Limestone Co., 
    916 S.W.2d 896
    , 906
    (Tenn. 1996)).
    In this case, after the jury was selected but before it was sworn, the trial court excused
    the jurors for a short recess. During this recess, the trial court, sua sponte, announced that
    the State had issued peremptory challenges against five African-American jurors. It further
    noted that “[i]n each case[,] they followed the wise practice of stating in writing why they
    were doing that, stating what I consider to be in each case a race[-]neutral reason . . . .” The
    trial court did not read the reasons into the record but, rather, included those writings in the
    trial record as an exhibit. Appellant made no argument with regard to this issue in the trial
    court. The only comments offered by appellant’s counsel were a request to read the reasons
    given by the State and an agreement with a statement made by the trial court that this could
    be an issue on appellate or post-conviction review.
    In light of appellant’s failure to raise a Batson challenge or advance any argument in
    the trial court in this regard, we must first determine whether he has waived this issue for
    appellate review. This court has recently considered a similar issue, wherein we described
    the trial court’s addressing of the Batson issue sua sponte as “proactive.” State v. Jeffrey L.
    Vaughn, No. W2012-01987-CCA-R3-CD, 
    2013 WL 1282331
    , at *7 (Tenn. Crim. App.
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    March 28, 2013), perm. app. denied (Tenn. Sept. 25, 2013). In Jeffrey L. Vaughn, as in this
    case, after the trial court addressed the issue on its own motion, appellant failed to make any
    further argument. 
    Id.
     This court reasoned:
    We can find no further discussion of the issue in the record. It does not
    appear that the defendant ever actually objected to the prosecution’s use of its
    preemptive strikes[] or that the defendant otherwise raised the Batson issue
    until his motion for new trial. Consequently, it appears to us that the defendant
    waived his Batson claim by failing to raise a contemporaneous objection or
    filing timely motion concerning the issue. 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.”). The
    trial court’s failure to engage in a more extended discussion of the Batson
    issue appears to be the natural result of the defendant’s failure to raise it in a
    timely fashion.
    It is possible that the defendant failed to raise a contemporaneous
    objection on the Batson issue because he interpreted the trial court’s remarks
    as raising a Batson challenge sua sponte. He may further have interpreted the
    trial court’s statements to the effect that the prosecution had provided
    racially-neutral explanations for striking both jurors as implicitly making the
    additional findings that, under the totality of the circumstances, no
    discrimination had occurred. Consequently, the defendant may have
    understood the Batson issue to have been contemporaneously raised and
    passed upon by the trial court. However, even if this court were inclined to
    ignore the defendant’s waiver in light of this interpretation of the record, the
    defendant has failed to establish that the trial court erred by concluding that the
    State had no discriminatory intent.
    
    Id.
     We conclude that this court’s Jeffrey L. Vaughn opinion is instructive on this issue.
    Although appellant failed to raise an objection or further develop the record, we can
    rationally interpret these failures as his understanding that any impending Batson challenges
    had been ruled upon by the trial court. Thus, while we are inclined to apply the waiver
    provision contained in the Tennessee Rules of Appellate Procedure, we will nonetheless
    review the merits of the claim.
    The State exercised the following peremptory challenges against African-American
    venire members: (1) Marjorie Donald, who had an “extended family relation” to appellant;
    (2) Annie Donald, whose son-in-law was appellant’s brother; (3) Moselle House, whom the
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    CI had reportedly seen “associating” with appellant; (4) Carlitha McKinley, who knew
    appellant; and (5) Jesse Greene, also reported by the CI as having been an “associate” of
    appellant. We reiterate our conclusion in Jeffrey L. Vaughn:
    [Two] potential [jurors’] status as the defendant’s friend and the other
    potential [jurors’] status as the defendant’s [extended family] provided the
    State with readily-defensible, racially-neutral reasons for striking them. By
    ruling in favor of the State, the trial court necessarily assessed the prosecutor’s
    credibility and credited the State’s proffered rationales. The trial court was in
    the best position to assess the demeanor of the prosecutor. The defendant
    directs our attention to nothing in the record that would establish that the trial
    court’s determination was erroneous. The defendant’s claim for relief on the
    grounds that the State violated Batson by striking [] African-American
    potential jurors from the venire is denied.
    As noted above, “the party raising the Batson objection bears the burden of persuading
    the trial court that the other party has engaged in purposeful and impermissible
    discrimination.” Kiser, 
    284 S.W.3d at
    258 (citing Batson, 
    476 U.S. at 93
    ); see Purkett, 
    514 U.S. at 768
     (noting that “the ultimate burden of persuasion regarding racial motivation rests
    with, and never shifts from, the opponent of the strike”). Appellant offered no such
    “persuasion” in the trial court. Appellant has failed to establish that he is entitled to relief
    on this claim of error.
    CONCLUSION
    Based upon our review of the record, the briefs of the parties, arguments of counsel,
    and applicable legal authorities, we affirm the judgments of the trial court.
    _________________________________
    ROGER A. PAGE, JUDGE
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